Shabiri Wesonga v Hill School Academy [2013] KEELRC 640 (KLR)
The bottom line
#A Kenyan court awarded a teacher KSh 420,590 because his employer fired him by phone without a hearing, proving documentation and fair procedure matter.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was dismissed or absconded duty
The claimant was dismissed unprocedurally; the desertion allegation was a fabrication
The respondents' advocate's letter of 21.2.2012 alleged assault of a colleague, yet RW1 denied giving such instructions; the alleged victim was never called as a witness and no charges were preferred. Evidence including the duty rosta, advocate's letter of 14.2.2012 and Safaricom call printout showed the claimant was in school and in contact with the respondents from 12th to 14th February 2012, making desertion implausible.
Whether the termination was fair and lawful
The dismissal was unfair and unjustified as the claimant was not accorded a hearing nor given notice
The claimant was dismissed without a warning letter or notice to show cause and without being heard. This breached Section 42(1) of the Employment Act 2007, Article 50(1) of the Constitution on fair hearing, and ILO Recommendation 119(4) on fair hearing before dismissal.
What remedies the claimant is entitled to
Notice pay, unpaid leave and 12 months' salary as compensation were awarded; overtime and gratuity were refused
The court found the claimant entitled to the remedies sought, awarding one month's salary in lieu of notice, 21 days' leave pay and compensation equivalent to 12 months' salary for the unlawful termination. Overtime failed for lack of proof of computation, and gratuity was barred because the claimant contributed to NSSF under Section 35(6) of the Employment Act.
Legal principles established
#- An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee in a language the employee understands, per Section 42(1) of the Employment Act
- Failure to accord an employee a hearing before dismissal contravenes Section 42(1) of the Employment Act and Article 50(1) of the Constitution, rendering the dismissal unfair and unjustified
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Ksh 30,700
- 2.Payment of 21 days leave of Ksh 21,490
- 3.Compensation equivalent to 12 months salary for unlawful termination of Ksh 368,400, total KSH 420,590.00 less statutory deductions
- 4.Respondents to issue the claimant with a certificate of service
- 5.Respondents to pay costs of the case
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act 2007 and Article 50(1) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shabiri Wesonga v Hill School Academy [2013] KEELRC 640 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/640/eng@2013-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.