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ELRCPartially AllowedCause 1554 of 2010· [2013] KEELRC 360 (KLR)

TABITHA MASEGE V MOBILE LINK (K) LIMITED [2013] KEELRC 360 (KLR)

Industrial Court of Kenya
9 May 2013
MNMathews N. Nduma
2,967 words in judgment
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The bottom line

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A Kenyan court awarded a wrongly dismissed branch manager nearly Kshs.300,000 because her employer followed none of the fair dismissal procedures the Employment Act requires.

What this practically means

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Executive summary

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The Claimant, a former Branch Manager at the Respondent's Mombasa branch, claimed unpaid salary for August and September 2010, one month's salary in lieu of notice, unpaid NSSF deductions, terminal benefits and compensation for what she said was a summary termination without justifiable cause on 28th September 2010. The Respondent denied employing her before January 2007, asserting the earlier employment was by a different entity, and counterclaimed for Kshs.441,510.50 in alleged unaccounted-for branch capital. The court framed eleven agreed issues and held, on uncontroverted NSSF records and the appointment letter, that the Claimant was employed from 1st December 2000, with NSSF registration on 26th April 2001. On termination, the court found the show-cause letter unsigned, the stock taking report never supplied despite requests, her office keys confiscated before the explanation deadline, and no investigation undertaken. Applying Sections 41, 43, 45 and 47(5) of the Employment Act, 2007, the court found the dismissal substantively unlawful and procedurally unfair. The counterclaim was dismissed as baseless and vexatious. The court awarded Kshs.57,944 in unpaid salary, Kshs.10,000 in unpaid NSSF deductions, Kshs.28,972 in lieu of notice, and eight months' gross salary (Kshs.231,776) as compensation for unfair dismissal, totalling Kshs.299,720.00, plus costs and a certificate of service within 14 days.

Key legal issues

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01

Whether the Claimant was employed by the Respondent from 2000/2001

Holding

The Claimant was employed on 1st December 2000 by the Respondent and registered with NSSF on 26th April 2001; the Respondent's assertion of employment from January 2007 by a different entity failed

Reasoning

The Claimant produced a letter of appointment dated 1st December 2000 and an NSSF provisional member statement showing the Respondent as employer with contributions from 2001. The Respondent produced no letter of appointment for 2007 and offered no explanation of any transition from the alleged different entity. The NSSF document was uncontroverted and contradicted the Respondent's evidence.

p. 4
02

Whether the summary termination was substantively lawful and procedurally fair

Holding

The termination was substantively unlawful and procedurally unfair

Reasoning

The show-cause letter was unsigned, the stock taking report was not attached despite requests, her office keys were confiscated before the 3-day explanation period lapsed, and no investigation was adduced. The Respondent failed to justify the reason under Sections 43 and 45 and did not follow fair procedure under Section 41 of the Employment Act, 2007.

p. 6
03

Whether the Respondent's counterclaim for Kshs.441,510.50 was proved

Holding

The counterclaim was dismissed as baseless and vexatious

Reasoning

No oral or documentary evidence was adduced to support the alleged capital discrepancy. The police report (OB14) led to no statements, arrest or charge. The Claimant's requests for the stock taking report went unanswered and the Respondent did not refer to those letters in its response.

p. 6

Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, poor performance or incapacity, explain the reasons to the employee and hear their representations as required by Section 41 of the Employment Act, 2007
  • An employer bears the burden of establishing a valid and justifiable reason for termination under Section 43 read with Section 45 of the Employment Act, and the employee may discharge the evidentiary burden under Section 47(5)
  • Uncontroverted documentary evidence, such as an NSSF statement, may establish the employment relationship and its duration

Court orders

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  1. 1.Respondent to pay unpaid salary for August and September 2010 of Kshs.57,944
  2. 2.Respondent to pay unpaid NSSF deductions of Kshs.10,000
  3. 3.Respondent to pay one month salary in lieu of notice of Kshs.28,972
  4. 4.Respondent to pay compensation of eight (8) months gross salary at Kshs.28,972 per month for unlawful and unfair dismissal, totaling Kshs.231,776
  5. 5.Respondent to pay costs of the suit
  6. 6.Total award of Kshs.299,720.00 to the Claimant
  7. 7.Respondent to provide the Claimant with a Certificate of Service from 1st December 2000 to 28th September 2010 within 14 days
  8. 8.Respondent's counterclaim of Kshs.441,510.50 dismissed

Authorities

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Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43(1) and (2)
  • Employment Act, 2007Section 44(3) and (4)
  • Employment Act, 2007Section 45(1) and 45(2)(a) and (b)(i)
  • Employment Act, 2007Section 47(5)
Jurisdiction invoked
Jurisdiction of the Industrial Court over employment and labour relations disputes (agreed issue No. 9 - whether the court has jurisdiction to hear and determine the matter)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "TABITHA MASEGE V MOBILE LINK (K) LIMITED [2013] KEELRC 360 (KLR)", Case Analysis (2013). Cause 1554 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/360/eng@2013-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.