Jane Wangui Wagura v Eddy Kuria Kahura t/a Pyramid Restaurant [2013] KEELRC 817 (KLR)
The bottom line
#A Kenyan court ruled that a waitress pushed out without notice or a hearing was unfairly terminated, awarding her Kshs.59,400 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of employment took place
Either the claimant was entitled to treat herself as constructively terminated by the respondent's indefinite request to leave, or her account of being told she was fired was highly probable; termination took place.
The respondent denied terminating the claimant but alleged a confrontation with a customer, Mrs. Gichuki. The court held it was the respondent's obligation to treat the allegation as a grievance, misconduct or poor performance and manage it through due process. The employer abdicated that obligation, requiring the claimant to 'go and sort her problems out of work' without notice or hearing. In that absence, the claimant could consider herself terminated, or her account of actual dismissal was highly probable.
Whether the termination was fair or unfair
The termination, whether constructive or actual, was unfair; compensation of Kshs.42,000.00 (six months gross salaries) awarded under section 49(1)(c).
No grievance management or disciplinary process was undertaken as envisaged in section 41 of the Employment Act, 2007, which requires notice and hearing. The court also took into account the claimant's two years of service and the respondent's willingness to submit to conciliation by the labour officer in fixing compensation at six months' gross salary.
Entitlement to terminal dues and other remedies
Claimant awarded salary for 22 days (Kshs.4,400), one month's pay in lieu of notice (Kshs.6,000) and a conceded Kshs.7,000 for leave days and public holidays; overtime and rest days claims failed for want of evidence.
Exhibit R2, purporting to show payment, could not be trusted on a balance of probability as it was unsigned by the claimant and there was no evidence of NSSF deduction. As no termination notice was issued, pay in lieu of notice was due. The respondent conceded Kshs.7,000. The overtime and rest-day claims failed as afterthoughts unsupported by evidence.
Legal principles established
#- An employer must address workplace-related allegations through grievance management or a fair disciplinary process with notice and hearing under section 41 of the Employment Act; failing which the employee may treat herself as terminated and the termination will be unfair.
Court orders
#- 1.A declaration that the termination of the claimant's employment by the respondent was unfair
- 2.The respondent to pay the claimant Kshs.59,400.00 by 1.11.2013, failing interest at court rates payable from the date of judgment till full payment
- 3.The respondent to pay costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007 invoked; section 41 and section 49(1)(c))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Wangui Wagura v Eddy Kuria Kahura t/a Pyramid Restaurant [2013] KEELRC 817 (KLR)", Case Analysis (2013). Cause No 92 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/817/eng@2013-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.