TERESIAH WANJIRU MATHANGA v PAYLES CAR HIRE & TOURS LIMITED [2013] KEELRC 472 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Fairness of termination
The termination was unfair because the Respondent breached the contractual warning procedure requiring two written warning letters before summary dismissal
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.
Notice pay under the Employment Act
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
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.
Quantum of compensation for unfair termination
Only one month's salary awarded as compensation rather than the 12 months claimed, given the very short period of service and training status
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.
Legal principles established
#- 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
#- 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)
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.