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ELRCPartially AllowedCause 433 of 2012· [2013] KEELRC 473 (KLR)

WANJIRU THIMBA v PLACID VIEW PROPERTIES LTD [2013] KEELRC 473 (KLR)

Industrial Court of Kenya
19 March 2013
JRJames Rika
1,011 words in judgment
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The bottom line

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A Kenyan hotel unfairly fired its deputy manager with fabricated offences and must pay her over Kshs.2 million in arrears and compensation.

What this practically means

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Executive summary

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Wanjiru Thimba, employed as Deputy General Manager of Ole Sereni Hotel owned by the Respondent from 1st October 2008, was summarily terminated by letter dated 27th April 2009 amid the hotel's financial difficulties. She claimed a declaration of unfair termination, 12 months' salary as compensation, and arrears of salary, allowances, notice pay and leave pay totalling Kshs.872,846.15. The Respondent, in a Statement of Reply, conceded the employment but alleged poor performance and persistent absence, and later boycotted the hearing without explanation. The Court accepted the Claimant's unchallenged evidence. It found the Respondent had suffered a financial meltdown, deferred salaries, and fabricated employment offences to justify terminating the Claimant's contract. The attendance sheets relied on were unsigned and unattributed, and the Respondent failed to appear to justify the termination under sections 41, 43 and 45 of the Employment Act 2007. The Court declared the termination unfair, awarded the contractual arrears of Kshs.872,846.15 in full, and granted compensation at 6 months' salary (Kshs.1,299,000) rather than the 12 months sought, for a total award of Kshs.2,072,846.15 payable within 30 days. The Respondent was ordered to release the certificate of service forthwith. No order was made on costs and interest. The award was delivered at Nairobi on 19th March 2013 by Rika J.

Key legal issues

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01

Whether termination was unfair

Holding

Termination was unfair; the Respondent fabricated employment offences and failed to follow the statutory procedure

Reasoning

The Respondent experienced financial difficulties and deferred salaries. It alleged derogatory conduct and poor attendance, but its attendance records were unsigned and unverified. The Respondent boycotted the hearing and did not attempt to justify the termination under sections 41, 43 and 45 of the Employment Act. The Court accepted the Claimant's unchallenged evidence and found the offences were manufactured to justify termination.

p. 3
02

Entitlement to arrears and allowances claimed

Holding

Claims under paragraph C of the Statement of Claim were merited and founded in the contract of employment

Reasoning

The Respondent had agreed in writing signed by its Directors that deferred salary arrears would be paid as part of final dues if employment was terminated. Nothing suggested the payments were discretionary. The Claimant's unchallenged evidence supported the claims for salary balances, allowances, notice pay and leave pay.

p. 3
03

Quantum of compensation for unfair termination

Holding

Compensation awarded at 6 months' salary (Kshs.1,299,000) rather than the 12 months sought

Reasoning

The Court found the Claimant entitled to compensation for unfair termination but in its discretion granted 6 months' gross salary rather than the maximum 12 months claimed. This was combined with full payment of the contractual arrears, notice and leave dues, and immediate release of the certificate of service which the Respondent had withheld.

p. 3

Legal principles established

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  • An employer must justify termination in terms of sections 41, 43 and 45 of the Employment Act 2007, both on substance and procedure
  • Termination carried out without regard to the minimum statutory termination procedure is unfair and attracts compensation

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay arrears of salary, allowances, notice and leave amounting to Kshs.872,846.15
  3. 3.Compensation for unfair termination at 6 months' salary totalling Kshs.1,299,000
  4. 4.Total of Kshs.2,072,846.15 payable within 30 days of delivery of the Award
  5. 5.Respondent to release the certificate of service to the Claimant forthwith
  6. 6.No order on costs and interest

Authorities

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Legislation

  • Employment Act 2007sections 41, 43 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over dispute of unfair and unlawful termination (Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "WANJIRU THIMBA v PLACID VIEW PROPERTIES LTD [2013] KEELRC 473 (KLR)", Case Analysis (2013). Cause 433 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/473/eng@2013-03-19

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