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ELRCPartially AllowedCause 1098 of 2012· [2013] KEELRC 478 (KLR)

ELIZABETH NGINA v EAST AFRICA SAFARI AIR EXPRESS LTD [2013] KEELRC 478 (KLR)

Industrial Court of Kenya
26 February 2013
2,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing an employee verbally is unfair—employers must issue written termination notices or risk paying damages and costs.

What this practically means

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Executive summary

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The claimant, employed by the respondent airline in November 2006 as a Reservations Officer on Kshs.21,000 salary plus Kshs.4,000 housing allowance, claimed unlawful termination of her employment. She testified that on 2nd May 2012 she reported to duty at JKIA, was summoned to the head office, and was told her job would be outsourced, being offered resignation or termination without dues; she rejected both options and no written termination letter issued. She claimed notice pay, May 2012 wages, accrued leave for 2010-2012, and service pay. The respondent, which opted not to call evidence, alleged she absconded from 2nd May 2012 and that it later paid Kshs.25,000 as one month's salary in lieu of notice. The court held that under Section 35(1)(b) of the Employment Act and the contract's termination clause, termination had to be in writing; none was issued. The alleged abscondment could have justified summary dismissal under Section 44(4)(a), but the respondent took no action on it and kept no attendance records. The court found the claimant was on duty on 2nd May and was verbally dismissed without grounds, unfairly. It awarded compensation of Kshs.25,000, notice pay of Kshs.25,000, unpaid May 2012 dues of Kshs.1,667, and leave for 2½ years of Kshs.62,500, totalling Kshs.114,167, plus costs and a certificate of service. The service pay claim failed under Section 35(5) as the claimant was an NSSF member.

Key legal issues

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01

Requirement of written notice of termination

Holding

Termination was required to be in writing under Section 35(1)(b) of the Employment Act and the contract; no written notice was issued, rendering the verbal dismissal unfair

Reasoning

Section 35(1)(b) requires notice in writing for contracts paid periodically. The written notice must state reasons, enabling assessment of fairness. Both parties confirmed no written termination notice was issued, and the respondent did not exercise its contractual right of instant dismissal in writing for any fundamental breach.

p. 3
02

Alleged abscondment as basis for summary dismissal

Holding

Though Section 44(4)(a) permits summary dismissal for absence without leave, the respondent took no action on the alleged abscondment and produced no attendance records

Reasoning

The employer bears records of staff presence. The respondent pleaded abscondment from 2nd May 2012 but adduced no evidence of any sanction, inquiry, or correspondence. The claimant's credible evidence of reporting to duty and being directed to the head office stood uncontroverted, so the abscondment plea failed.

p. 3
03

Service pay under Section 35(5) of the Employment Act

Holding

Service pay claim failed because the claimant was an NSSF contributor, excluded by Section 35(5)

Reasoning

The pay slip showed NSSF and NHIF deductions. Section 35(5) excludes employees who are members of NSSF or a pension scheme from entitlement to service pay on termination, so the claim could not succeed despite six years of service.

p. 4
04

Accrued untaken leave

Holding

The court awarded leave for 2½ years (2010-2012) at 21 days per year, Kshs.62,500.00

Reasoning

The claimant testified her leave requests were verbally declined due to staff shortage since 2010. The burden rested on the respondent to prove leave was taken or forfeited, which it did not discharge, having opted not to call evidence.

p. 4

Legal principles established

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  • Termination of employment, whether on notice or by summary dismissal, must be in writing
  • Without a written notice of termination stating reasons, the court cannot assess the fairness of the termination and relies only on the evidence before it
  • The duty to keep staff attendance records rests on the employer; in the absence of such records the court decides in the employee's favour on presence at work
  • An employer who alleges abscondment must take some action (such as notice to show cause or dismissal in writing) to benefit from that plea

Court orders

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  1. 1.Declaration that the claimant's termination was unfair
  2. 2.Compensation for unfair termination of Kshs.25,000.00
  3. 3.Pay in lieu of notice of Kshs.25,000.00
  4. 4.Unpaid dues for May 2012 of Kshs.1,667.00
  5. 5.Unpaid leave of Kshs.62,500.00 (total Kshs.114,167.00)
  6. 6.Costs of the suit to the claimant
  7. 7.Respondent directed to issue a Certificate of Service to the claimant

Authorities

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Legislation

  • Employment ActSection 35(1)(b)
  • Employment ActSection 35(5)
  • Employment ActSection 19(1)(c)
  • Employment ActSection 44(4)(a)
  • Retirement Benefits Act

Cases cited (2)

  • Director General: Office of the Premier of the Western Cape & Another versus SA Association on Behalf of Broens and Others
    (2011) 32 ILJ 1077 (LC)
  • PAWUSA and Another versus Department of Education, Free State Province and Others
    (2008) 29 ILJ 3013 (LC)
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act (Industrial Court cause)

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, "ELIZABETH NGINA v EAST AFRICA SAFARI AIR EXPRESS LTD [2013] KEELRC 478 (KLR)", Case Analysis (2013). Cause 1098 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/478/eng@2013-02-26

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