REBECCA ACHIENG v NASSEFU CO-OPERATIVE SAVINGS AND CREDIT SOCIETY LTD [2013] KEELRC 444 (KLR)
The bottom line
#Even when an employee commits gross misconduct, Kenyan employers must still state the reasons for termination in writing or the dismissal becomes unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's conduct amounted to gross misconduct justifying summary dismissal
Yes - the confrontation with the GM and circulation of the allowances schedule constituted gross misconduct subject to summary dismissal
The court accepted the respondent's evidence that the claimant confronted her supervisor aggressively in the presence of board members and snatched and circulated a confidential payment schedule. Under section 44(4) of the Employment Act, abusive language toward a person in authority and disobedience amount to gross misconduct. The claimant's aggressive act, even if aggrieved, was unbecoming and escalatory.
Whether the termination was procedurally fair
No - the termination letter failed to state the reasons for termination, rendering the termination procedurally unfair
Although the employer followed an elaborate process of show cause, interdiction and hearing, the final termination letter did not disclose the reasons. Sections 45 and 46 of the Employment Act require reasons to be clearly stated. The GM's view that reasons in the show cause letter sufficed was contrary to the law and the court found the practice unfair.
Whether interdiction was lawful and half pay recoverable
Interdiction was lawful as it was part of the respondent's disciplinary procedures under its terms and conditions of service; the claim for half pay was declined
Section 12 of the Employment Act incorporates the respondent's terms and conditions of service, which expressly provide for interdiction on half pay. The claimant did not challenge the interdict in her defence. However, interdiction cannot be equated to notice of termination, so notice pay was separately awarded.
Whether the respondent's dues from the claimant could be set off
No - the outstanding Sacco dues of Kshs.211,285.88 could not be recovered absent a counter-claim
While the claimant owed the Sacco dues recoverable from final dues, the court could only effect such recovery if pleaded as a counter-claim. The respondent merely made general averments and submissions without filing a counter-claim, so the court declined to assess the amount.
Legal principles established
#- An employer must hear an employee before termination even where the employee is accused of gross misconduct
- A termination letter must state the reasons for termination; where reasons are not outlined any sanction given becomes unfair
- Reinstatement is not ordered except in very exceptional circumstances
- Interdiction is not equivalent to notice of termination
- Employers may expand grounds for summary dismissal through workplace manuals, which the Court will apply if reasonable
Court orders
#- 1.A declaration that the termination of the Claimant was unfair
- 2.Compensation equivalent to one month pay amounting to Kshs.47,000.00
- 3.Notice pay of one month amounting to Kshs.47,000.00
- 4.Total award of Kshs.94,000.00 to the Claimant
- 5.Costs of the suit to the Claimant
- 6.Certificate of Service to be issued to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act 2007 (Sections 12, 41, 44, 45, 46, 49 and 50 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "REBECCA ACHIENG v NASSEFU CO-OPERATIVE SAVINGS AND CREDIT SOCIETY LTD [2013] KEELRC 444 (KLR)", Case Analysis (2013). Cause 20 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/444/eng@2013-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.