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ELRCPartially AllowedCause 1042 of 2011· [2013] KEELRC 472 (KLR)

TERESIAH WANJIRU MATHANGA v PAYLES CAR HIRE & TOURS LIMITED [2013] KEELRC 472 (KLR)

Industrial Court of Kenya
19 February 2013
572 words in judgment
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The bottom line

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A Kenyan employer who skipped the warning steps in its own employment contract had to pay an employee even though she had worked only 42 days.

What this practically means

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Executive summary

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The Claimant, employed on 18th August 2009 under an 11-month fixed-term contract expiring on 17th July 2010, was terminated on 30th September 2009 for poor performance, having worked only 42 days during which she was undergoing training. She claimed salary for September 2009, one month's salary in lieu of notice, and compensation equivalent to 12 months' salary for unfair termination. The facts were not in dispute; the Claimant testified on her own behalf and the Respondent called a Licensing Officer. The contract contained a Warning Procedure requiring two written warnings before summary dismissal, but no warning was ever issued to the Claimant. The court found the termination unfair for failure to comply with the contractual warning procedure. It awarded Kshs.10,000 for September 2009 salary, which the Respondent's witness did not deny, and Kshs.10,000 in lieu of notice under sections 35 and 36 as read with sections 49(1)(a) and 50 of the Employment Act. On compensation, the court held that the 42-day training period was too short to justify 12 months' compensation, but awarded one month's salary (Kshs.10,000) as compensation because the Respondent breached its own contract by failing to give notice. Judgment was entered against the Respondent in the total sum of Kshs.30,000, read in open court and signed on 19th February 2013 by Lady Justice Maureen Onyango.

Key legal issues

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01

Fairness of termination

Holding

The termination was unfair because the Respondent breached the contractual warning procedure requiring two written warning letters before summary dismissal

Reasoning

The contract's Warning Procedure clause mandated written warnings before summary dismissal. The Claimant was terminated for poor performance without any warning. The court held that non-compliance with the terms of the contract rendered the termination unfair, even though the facts were largely undisputed and the Claimant was on a fixed-term contract still undergoing training.

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02

Notice pay under the Employment Act

Holding

The Claimant was entitled to one month's salary in lieu of notice under sections 35 and 36 as read with sections 49(1)(a) and 50 of the Employment Act

Reasoning

The employee received neither notice nor pay in lieu of termination. The court applied sections 35 and 36 of the Employment Act, read with section 49(1)(a) as read together with section 50, to entitle the Claimant to one month's salary in lieu of notice, awarded at Kshs.10,000.

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03

Quantum of compensation for unfair termination

Holding

Only one month's salary awarded as compensation rather than the 12 months claimed, given the very short period of service and training status

Reasoning

The Claimant worked only 42 days, all spent in training, and had not yet settled in or started working. The court found this too short a period to justify 12 months' compensation, but because the Respondent breached its own contract by failing to give notice, it exercised discretion to award one month's salary as compensation.

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Legal principles established

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  • Termination is unfair where the employer fails to comply with the contractual warning procedure before dismissing an employee
  • An employee terminated without notice is entitled to pay in lieu of notice under sections 35 and 36 and section 49(1)(a) read with section 50 of the Employment Act

Court orders

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  1. 1.Judgment against the Respondent in the total sum of Kshs.30,000, made up of salary for September 2009 (Kshs.10,000), one month's salary in lieu of notice (Kshs.10,000) and one month's salary as compensation (Kshs.10,000)

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 36
  • Employment ActSection 49(1)(a)
  • Employment ActSection 50
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court of Kenya

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, "TERESIAH WANJIRU MATHANGA v PAYLES CAR HIRE & TOURS LIMITED [2013] KEELRC 472 (KLR)", Case Analysis (2013). Cause 1042 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/472/eng@2013-02-19

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