Kenya Union of Commercial, Food & Allied Workers V Richlands Insurance [2013] KEELRC 526 (KLR)
The bottom line
#A Kenyan employment court upheld a dismissal because the employer proved it had a valid reason and followed a fair procedure with proper warnings.
What this practically means
#Executive summary
#Key legal issues
#Valid reason and fair procedure for termination
The Respondent proved on a balance of probabilities that the grievant was dismissed for a valid reason (poor work performance and misconduct after warnings) and in accordance with a fair procedure, satisfying Sections 43 and 45(2)(a) and (c) of the Employment Act
The versions of the grievant and the Respondent's CEO were mutually destructive. The court assessed credibility and preferred the candid account of Mr. Durgesh Shah, who detailed the warnings issued and the grievant's persistent flouting of rules after receiving compensation under the Work Injury Benefits Act. The grievant's testimony, attributing his conduct to discrimination and hospital delays, was not believed. The Respondent's evidence therefore discharged the statutory burden.
Entitlement to severance pay
The grievant is not entitled to severance pay because he was paid pension from the employer's pension scheme and was covered by NSSF to which the Respondent fully contributed
The court considered the grievant's membership of the Respondent's contributory pension scheme, from which he was paid Kshs.40,000 (75% of the pension payable), and his NSSF coverage with full remittance of statutory deductions during his employment. These benefits were held to displace any claim to severance pay upon termination.
Legal principles established
#- The employer bears the burden of proving on a balance of probabilities a valid reason for termination and a fair procedure, per Section 43(1) as read with Section 45(2)(a) and (c) of the Employment Act
Court orders
#- 1.The Claim for compensation for unlawful and unfair termination is dismissed
- 2.The Respondent to pay the grievant one month's salary in lieu of notice in the sum of Kshs.10,000 and/or tender the same to court for the grievant to collect
- 3.There will be no order as to costs
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction over employment and labour relations disputes (Cause 356 of 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food & Allied Workers V Richlands Insurance [2013] KEELRC 526 (KLR)", Case Analysis (2013). Cause 356 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/526/eng@2013-01-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.