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ELRCPartially AllowedCause 942 of 2010· [2013] KEELRC 441 (KLR)

SAMUEL WAWERU MAINA v THE TRUSTEES OF SISTERS OF MARY IMMACULATE, KENYA [2013] KEELRC 441 (KLR)

Industrial Court of Kenya
25 March 2013
MMMonica Mbaru
2,941 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan school was ordered to pay a teacher for firing him without a hearing, even though he had refused to sign a new contract.

What this practically means

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Executive summary

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The claimant, a teacher employed by the respondent from 19th January 2003 on successive three-year contracts, the last expiring on 31st December 2009, sued for wrongful termination and withholding of benefits after his employment was terminated on 16th April 2010 on the ground that he had failed to sign a new contract. He claimed unpaid leave days, notice pay or payment in lieu, April 2010 salary and medical allowances, interest at 20% and general damages, alleging the termination was abrupt, without notice, without disciplinary proceedings and without a hearing, and that he and six other teachers had been declared redundant without due process. The respondent denied the claim, asserting the claimant refused to sign the new contract, made demands the school could not meet, incited colleagues not to sign, and that his dues were computed but he refused to collect them; it admitted only one month's notice pay and salary for 16 days worked in April. The court held that although the written contract had expired, the claimant's continued service for over three months deemed him an employee under section 37(1) of the Employment Act, governed by section 35. While doubting the claimant's candour about the signing of the contract, the court found the respondent breached section 41's procedural requirements, as no record showed the Board meeting addressed the termination grounds, and declared the termination unfair. Severance pay was declined as the termination was not redundancy-based. Judgment was entered for the claimant: a declaration of unlawful termination, one month's gross salary of Ksh.13,841.00, and costs against the respondent.

Key legal issues

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01

Status of employee working without a contract after expiry

Holding

The claimant was an employee of the respondent as of 16th April 2010 by operation of section 37(1) of the Employment Act, and his termination was governed by section 35 of the Act

Reasoning

The claimant's written contract expired on 31st December 2009 but he continued offering his services for over three months without a new contract. By operation of section 37(1), continuous engagement without a contract for the equivalent of three months or more converts the engagement into one where wages are paid monthly, thereby attracting the termination protections of section 35(1)(c).

p. 4
02

Procedural fairness in termination

Holding

The termination was unfair because the respondent did not comply with section 41 of the Employment Act; the meeting with the Board did not clearly address the grounds for termination and no record was produced

Reasoning

Section 41(1) requires the employer to explain the reasons for contemplated termination and section 41(2) requires the employee's representations to be heard and considered. Although the Board met the teachers, the court could not establish that the meeting addressed the issues pertinent to the termination, and no record was produced. The termination letter was a decision, not an intention to consider termination.

p. 5
03

Validity of the reason for termination

Holding

The reason given was failure to sign the new contract; the court found the claimant was not honest, likely withholding signature pending a salary increase, but a valid reason alone did not save an unfair procedure

Reasoning

The termination letter cited failure to sign the new contract. The court found it highly likely the claimant delayed signing to press for a salary increase. However, notwithstanding the claimant's conduct, the duty rested on the respondent to afford him a hearing before termination; breach of due process rendered the termination unfair.

p. 5
04

Severance pay claim

Holding

The claim for severance pay was declined because the termination was not based on redundancy

Reasoning

The claimant had argued he and six other teachers were declared redundant without due process, but the termination letter was expressly grounded on failure to sign a new contract. In the absence of a redundancy-based termination, no basis for severance pay was made out and the court declined that head of claim.

p. 5

Legal principles established

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  • Where an employee works continuously without a contract for the equivalent of three months or more, the contract of service is deemed by operation of section 37(1) of the Employment Act to be one where wages are paid monthly, attracting section 35 protections
  • An employer must follow due process under section 41 of the Employment Act before terminating an employee; failure to give the employee an opportunity to be heard renders termination unfair notwithstanding a valid reason
  • A verbal contract of employment confers enforceable rights and the provisions of the Employment Act apply to both oral and written contracts

Court orders

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  1. 1.A declaration that the claimant's termination of employment by the respondent was unlawful
  2. 2.Payment of Ksh.13,841.00 being gross salary for one month for unlawful termination
  3. 3.The respondent to pay costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 2 (provisions apply to oral and written contracts)
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 37(1)
  • Employment Act, 2007Section 41(1) and 41(2)
Jurisdiction invoked
Jurisdiction under the Employment Act, 2007 as the court of first instance over employment and labour relations causes

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, "SAMUEL WAWERU MAINA v THE TRUSTEES OF SISTERS OF MARY IMMACULATE, KENYA [2013] KEELRC 441 (KLR)", Case Analysis (2013). Cause 942 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/441/eng@2013-03-25

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