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ELRCAllowedCause 1166 of 2012· [2013] KEELRC 468 (KLR)

MUTUNE MUSAU V DESIGNWEAR LTD [2013] KEELRC 468 (KLR)

Industrial Court of Kenya
21 February 2013
581 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fires a worker without a hearing or notice must pay a full year's salary as compensation.

What this practically means

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Executive summary

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The Claimant, Mutune Musau, sued Designwear Ltd by a Memorandum of Claim dated 12th June 2012, alleging that he was employed by the Respondent in 2008 without a written letter of appointment and that his employment was terminated on 17th February 2012 following an incident on 14th February 2012 in which goods were alleged to have been stolen in the warehouse while he and other employees were moving furniture and equipment. The Respondent, though served with the Memorandum of Claim and hearing notices, neither filed a reply nor attended court. The Claimant testified that after the incident, in which a supervisor saw another person attempting to remove items, he and two colleagues were ordered to remove their uniforms and leave or write letters of apology, and three days later were told to go away. His last salary was Kshs.10,868.00, and he claimed one month's salary in lieu of notice and twelve months' compensation. The court examined the termination letter and held that the Claimant was never given an opportunity to defend himself, that the letter did not state he was the culprit, that the Respondent failed to comply with Section 41 of the Employment Act, and that the termination was effected without notice, rendering it unfair. Awarding remedies under Sections 49 and 50 of the Employment Act, the court granted the Claimant Kshs.10,868.00 in lieu of notice and Kshs.130,416.00 as twelve months' compensation, totaling Kshs.141,284.00, plus filing fees, with judgment read in open court on 21st February 2013.

Key legal issues

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01

Fairness of the termination and compliance with Section 41 of the Employment Act

Holding

The termination was unfair because the Claimant was not given an opportunity to defend himself and was terminated without notice.

Reasoning

The letter of termination blamed an incident of stolen goods in the warehouse but did not assert that the Claimant was the culprit. No hearing or explanation was afforded to him before the decision to terminate, contrary to the procedural requirements of Section 41 of the Employment Act. The termination also took effect without notice. In the absence of any response from the Respondent, who neither filed a reply nor attended court, the Claimant's uncontroverted evidence stood, and the court found the termination unfair.

p. 2
02

Entitlement to notice pay and maximum compensation under Sections 49 and 50 of the Employment Act

Holding

The Claimant was awarded one month's salary in lieu of notice and the maximum 12 months' salary as compensation for unfair termination.

Reasoning

Both remedies are provided under Section 49 as read with Section 50 of the Employment Act for an employee who has been unfairly terminated. The Claimant's last salary was Kshs.10,868.00, and on the basis of that figure the court computed one month's salary in lieu of notice and 12 months' compensation, totaling Kshs.141,284.00, plus filing fees.

p. 2

Legal principles established

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  • An employer must afford an employee an opportunity to be heard before termination; failure to do so breaches Section 41 of the Employment Act and renders the termination unfair.
  • A letter of termination that does not establish the employee's culpability, and which effects termination without notice, results in unfair termination entitling the employee to compensation under Section 49 of the Employment Act.

Court orders

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  1. 1.Payment of salary in lieu of notice of Kshs.10,868.00
  2. 2.Payment of 12 months' salary as compensation for unfair termination of Kshs.130,416.00
  3. 3.Payment of filing fees, the total award being Kshs.141,284.00 plus filing fees

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 49
  • Employment ActSection 50
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Sections 41, 49 and 50)

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, "MUTUNE MUSAU V DESIGNWEAR LTD [2013] KEELRC 468 (KLR)", Case Analysis (2013). Cause 1166 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/468/eng@2013-02-21

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