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ELRCPartially AllowedCause No 92 of 2013· [2013] KEELRC 817 (KLR)

Jane Wangui Wagura v Eddy Kuria Kahura t/a Pyramid Restaurant [2013] KEELRC 817 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
27 September 2013
1,070 words in judgment
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The bottom line

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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

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Executive summary

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The claimant, a waitress employed by the respondent from 1.11.2011 at a consolidated salary of Kshs.6,000, claimed unfair termination arising from events of 22.01.2013. The respondent denied terminating her, alleging instead that a customer, Mrs. Gichuki, confronted the claimant over an alleged affair with her husband, and that the respondent asked her to hand in her uniform and resolve the domestic issue away from the restaurant. The court framed three issues: whether termination occurred; whether it was fair; and entitlement to remedies. It held that the employer was obliged to treat the customer allegation as a grievance, misconduct or poor performance and to manage it through fair grievance or disciplinary process with notice and hearing under section 41 of the Employment Act, 2007. The respondent abdicated that obligation. In the absence of due process, the claimant was entitled to consider herself terminated, or her account of actual dismissal was highly probable. The termination, whether constructive or actual, was unfair, and the court awarded Kshs.42,000 (six months' gross salary) as compensation, considering the two years served and the respondent's willingness to conciliate. On terminal dues the court awarded Kshs.4,400 for 22 days' salary (discrediting unsigned exhibit R2), Kshs.6,000 in lieu of notice, and the conceded Kshs.7,000 for leave and public holidays, but rejected the overtime and rest-day claims as afterthoughts lacking evidence. Judgment for the claimant totalled Kshs.59,400 payable by 1.11.2013 with interest on default, plus costs.

Key legal issues

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01

Whether termination of employment took place

Holding

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.

Reasoning

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.

p. 2
02

Whether the termination was fair or unfair

Holding

The termination, whether constructive or actual, was unfair; compensation of Kshs.42,000.00 (six months gross salaries) awarded under section 49(1)(c).

Reasoning

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.

p. 2
03

Entitlement to terminal dues and other remedies

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.A declaration that the termination of the claimant's employment by the respondent was unfair
  2. 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. 3.The respondent to pay costs of the case

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 49(1)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007 invoked; section 41 and section 49(1)(c))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.