EDWIN ODOUR CHACHA V PHILISTERS ONYANGO & ANOTHER [2013] KEELRC 425 (KLR)
The bottom line
#A Kenyan court ruled an NGO unfairly terminated its employee, awarding him Kshs.120,166.70 because proper Employment Act procedures were ignored.
What this practically means
#Executive summary
#Key legal issues
#Nature and length of the Claimant's contract of employment
The Claimant was employed on permanent terms from 1st April 2001 and remained in continuous employment on similar terms until termination on 1st October 2010, notwithstanding the later issue of fixed-term contracts.
The Claimant's original letter of appointment confirmed permanent appointment with effect from 1st April 2001. The Respondent did not contest this. Although fixed-term contracts were later issued and renewed, the last expiring 31st May 2010, the Claimant remained in employment on similar terms until termination on 1st October 2010.
Whether the Claimant's termination was fair
The termination was unfair: neither the Section 40 redundancy procedure nor the Section 41 disciplinary procedure was followed, and the termination was in substance a redundancy.
The termination letter gave two grounds: relocation to new premises making services unnecessary (redundancy) and an earlier suspension over missing items (discipline). The disciplinary issue had been concluded when the Claimant resumed duty after suspension. Neither the Section 40 redundancy procedure nor the Section 41 disciplinary procedure was complied with, rendering the termination unfair.
Entitlement to pay in lieu of notice
The Claimant was awarded Kshs.10,000/= as one month's salary in lieu of notice, treating the lump-sum payment made as salary for September 2010.
The Respondent's letter of 1st October 2010 lumped together September salary and payment in lieu of notice. The court treated the payment as September salary and separately awarded one month's salary in lieu of notice.
Entitlement to pay in lieu of annual leave
The Claimant was awarded Kshs.65,166.70 being 195.5 untaken leave days at a daily rate of Shs.333.33.
The Claimant pleaded and testified he never took annual leave. The Respondent's exhibits showed off-duty and sick off but only 4 days of annual leave. The Respondent made a general denial without stating entitlement, days taken or balance, so the court awarded leave for the period 1st April 2001 to 1st October 2010.
Entitlement to service pay versus severance pay
Having found the Claimant was declared redundant, the court awarded severance pay of Shs.45,000/= (15 days' salary for 9 completed years) instead of the service pay claimed.
Because the court held the Claimant was declared redundant rather than dismissed for service-related reasons, he was entitled to severance pay under the Employment Act at not less than 15 days' salary per year worked. The court made this correction in light of the Claimant acting in person.
Legal principles established
#- For termination of employment to be fair, the employer must prove both fair procedure and valid reason.
- An employer must inform the employee of the reasons for termination and give the employee an opportunity to state his case.
- An employer who fails to comply with the statutory procedures for redundancy (Section 40) or discipline (Section 41) effects an unfair termination.
- Where a suspension over alleged misconduct was concluded and the employee resumed duty, the same issue cannot later form the basis of termination.
- A redundant employee is entitled to severance pay at not less than 15 days' salary for each year worked.
- An employee is entitled to a Certificate of Service under Section 51 of the Employment Act.
Court orders
#- 1.Judgment for the Claimant against the Respondent for Kshs.120,166.70
- 2.Claimant to be issued with a Certificate of Service
- 3.No orders for costs
- Jurisdiction invoked
- Industrial Court jurisdiction over employment and labour relations disputes (Cause filed under the Industrial Court's employment jurisdiction); Employment Act, Sections 40, 41, 45 and 51
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "EDWIN ODOUR CHACHA V PHILISTERS ONYANGO & ANOTHER [2013] KEELRC 425 (KLR)", Case Analysis (2013). Cause 223 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/425/eng@2013-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.