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ELRCPartially AllowedCause No 580 of 2012· [2013] KEELRC 809 (KLR)
Lucy Kariuki & 6 others v Tusker Mattresses Limited (Tuskys) [2013] KEELRC 809 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#Tuskys lost an unfair termination case because it fired employees without giving them the hearing Kenyan employment law requires, and paid damages and costs.
What this practically means
#Executive summary
#Seven former Shop Assistants of Tusker Mattresses Limited (Tuskys) claimed that their dismissals on 2nd December 2011, following suspension on 7th November 2011 over alleged involvement in unspecified dishonest activities, were unlawful and unfair because they were not given an opportunity to defend themselves. They sought gratuity, compensation for unfair termination, salary for November 2011 and pay in lieu of leave. The Respondent admitted the suspension and dismissals, citing fraudulent activities and internal investigations into inventory shrinkage at the Imara Daima Branch, but did not attend the trial despite due service; the case proceeded ex parte on 9th July 2013, with the 1st Claimant testifying. The court, applying Sections 41 and 45(2) of the Employment Act, 2007, held that although the Claimants were invited to make written statements and were questioned by Omega Risk Management during suspension, there was no evidence they were given an opportunity to be heard in the manner required by Section 41, rendering the terminations unfair. The court awarded individual compensation of between 3 and 8 months' pay plus withheld November 2011 salary, but rejected the claims for pay in lieu of leave (the Claimants having been allowed 11 days leave and paid for the balance), dismissed the unproved gratuity claims, and dismissed the entire claim of the 7th Claimant for want of supporting documents. The Respondent was ordered to pay the costs of the case.
Key legal issues
#01
Whether the termination of the Claimants' employment was justifiable and lawful
Holding
The termination was unfair within the meaning of Section 45 of the Employment Act, 2007
Reasoning
The termination memos cited failure to report fraudulent and dishonest activities as the reason. The Respondent produced the Claimants' written statements but no evidence that the Claimants were given an opportunity to be heard in the manner required by Section 41 of the Employment Act. Suspension pending investigations and invitation to make written statements did not satisfy the due process requirement. Accordingly the termination was procedurally unfair and compensation was awarded individually, with varying months of pay.
p. 2
Legal principles established
#- An employer must prove both a valid and fair reason for termination and that a fair procedure under Section 41 was followed; failure to afford the employee a hearing as required by Section 41 renders termination unfair under Section 45
Court orders
#- 1.Award to Lucy Kariuki of Kshs. 116,530 (5 months' pay compensation for unfair termination) and Kshs. 8,963 withheld salary for November 2011, total Kshs. 125,493
- 2.Award to Charles Kamau Ndirangu of Kshs. 69,918 (3 months' pay compensation) and Kshs. 16,607 withheld salary, total Kshs. 86,525
- 3.Award to Simon Githuka Muchina of Kshs. 176,680 (7 months' pay compensation) and Kshs. 11,649 withheld salary, total Kshs. 188,329
- 4.Award to Jackson Macharia Njai of Kshs. 69,918 (3 months' pay compensation) and Kshs. 10,757 withheld salary, total Kshs. 80,675
- 5.Award to John Njunge Waweru of Kshs. 69,918 (3 months' pay compensation) and Kshs. 10,757 withheld salary, total Kshs. 80,675
- 6.Award to Gabriel Karanja Ndungu of Kshs. 272,624 (8 months' pay compensation) and Kshs. 13,107 withheld salary, total Kshs. 285,731
- 7.Dismissal of the claims for pay in lieu of leave
- 8.Dismissal of the claims for gratuity
- 9.Dismissal of the entire claim of the 7th Claimant, Kamau Wilson Chege
- 10.Respondent to pay the costs of the case
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007 (Industrial Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Kariuki & 6 others v Tusker Mattresses Limited (Tuskys) [2013] KEELRC 809 (KLR)", Case Analysis (2013). Cause No 580 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/809/eng@2013-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.