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ELRCAllowedCause No. 2367 of 2012· [2013] KEELRC 819 (KLR)

Ivetta Mkala v Nation Media Group [2013] KEELRC 819 (KLR)

Industrial Court of Kenya
30 September 2013
MMM. Mbaru
1,513 words in judgment
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The bottom line

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A Kenyan court awarded a longtime Nation Media employee nearly KShs.1.2 million because her employer failed to follow fair dismissal procedures.

What this practically means

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Executive summary

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The claimant, Ivetta Mkala, sued Nation Media Group for wrongful dismissal and unpaid dues, alleging she was verbally dismissed on 10th July 2012 after over 16 years of service as secretary to the Managing Director in the NTV Division, without notice, written reasons or compensation. She sought compensation for unfair termination, three months' notice pay and leave pay, totalling Kshs.1,233,776.00. The respondent admitted the employment relationship but contended the termination was for poor performance identified at an appraisal meeting, that the claimant left the review meeting before a termination letter could be issued, and that she was not entitled to costs. The respondent admitted owing three months' notice pay. The respondent did not call any witness and filed no written submissions. The court applied sections 41(1) and 41(2) of the Employment Act, 2007, holding that the termination note given to the claimant was a final decision rather than a notification of intention, and that the claimant was not allowed a fellow employee or representative present nor heard before termination. No appraisal note or termination letter evidencing poor performance was produced. The court found an unfair labour practice and awarded the maximum 12 months' gross salary as compensation under section 49(4)(m), plus notice pay of Kshs.231,333.00 and one month's leave pay of Kshs.77,111.00, holding that accrued leave does not abate on termination before year end. Judgment was entered for the claimant with costs to the respondent.

Key legal issues

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01

Procedural fairness in termination for poor performance

Holding

The termination was unlawful because the respondent breached section 41 of the Employment Act - the termination note was a decision, not a notification of intention, and the claimant was not allowed a representative or heard.

Reasoning

Section 41(1) requires the employer to explain reasons for contemplated termination in a language the employee understands and allow presence of a fellow employee or union representative; section 41(2) requires hearing representations. The court found the note given was a final decision, not an invitation to respond, and no subsequent termination letter or appraisal note evidencing poor performance was produced. The respondent's submissions that the claimant invited her own loss could not cure the breach.

p. 2
02

Compensation for unfair termination

Holding

Maximum compensation of 12 months' gross salary awarded under section 49(4)(m) given over 16 years of service with no record of indiscipline.

Reasoning

Where an employer commits an unfair labour practice, compensation is awarded under section 49(4)(m). The claimant had served over 16 years without any record of indiscipline, justifying the maximum of 12 months' gross salary. Notice pay for 3 months was admitted and confirmed, and leave pay for one month was awarded since entitlement does not abate on termination before year end.

p. 3

Legal principles established

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  • Before terminating on grounds of poor performance, the employer must explain the reasons to the employee in a language the employee understands, allow a fellow employee or union representative to be present, and hear and consider the employee's representations.
  • Leave accrued for a year does not abate upon termination before the year ends; the employee may take leave at any time within the year it is due.

Court orders

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  1. 1.Declaration that the claimant's termination of employment by the respondent was unlawful
  2. 2.Payment of Kshs.925,332.00 being gross salary for twelve months for unlawful termination plus interest at court rates from date of judgment until full payment
  3. 3.Notice pay amounting to Kshs.231,333.00
  4. 4.Leave pay at Kshs.77,111.00
  5. 5.Respondent to pay costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 49(4)(m)
Jurisdiction invoked
Reference to the Employment Act, 2007 in an unfair termination claim under the Industrial Court's jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ivetta Mkala v Nation Media Group [2013] KEELRC 819 (KLR)", Case Analysis (2013). Cause No. 2367 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/819/eng@2013-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.