Thomas Mbugua v Unilever Kenya Limited [2014] KEELRC 5 (KLR)
The bottom line
#A Kenyan court awarded an employee 12 months' salary after his employer fired him without following its own disciplinary procedures or proving poor performance.
What this practically means
#Executive summary
#Key legal issues
#Burden of proving reason for termination
The Respondent failed to discharge the statutory burden under Sections 43(1) and 47(5) of the Employment Act
The Respondent produced no performance appraisal records, no performance enhancement programme, and no notice of disciplinary action prior to the notice to show cause. It relied on routine emails. The decision-makers, Mr. Olang and Mr. Kimani, did not testify, leaving the Claimant's evidence of an arbitrary decision unchallenged.
Fair procedure under Section 41 and the Human Resource Manual
The termination violated Section 41 of the Employment Act and the Respondent's own performance appraisal and disciplinary procedures
The decision to terminate had been made before the notice to show cause and alleged hearing; the upgrade to grade D2 shortly before termination showed performance was not objectively poor. The subsequent show-cause notice and hearing were a camouflage of a forgone conclusion, contrary to the manual incorporated into the contract.
Remedy for unlawful and unfair termination
Claimant entitled to unpaid October 2011 salary and fuel allowance, two months' pay in lieu of notice, and maximum 12 months' gross pay compensation under Section 49(1)(c)
The Respondent acted in bad faith: verbal termination, lockout, delayed payment of dues and negative references prolonged the Claimant's trauma. Compensation was computed on gross pay including the regular fuel allowance, and was held sufficient to subsume the general damages claims.
Legal principles established
#- An employer who fails to comply with its own procedures in a Human Resource Manual incorporated into the employment contract effects an unfair termination
- The burden of justifying the grounds for termination rests on the employer once the employee makes out a prima facie case of unfair termination
Court orders
#- 1.Respondent to pay Kshs.174,570/= being salary for October 2011
- 2.Respondent to pay Kshs.31,429/= being fuel allowance for October 2011
- 3.Respondent to pay Kshs.349,140/= being two months basic pay in lieu of notice
- 4.Respondent to pay Kshs.2,471,988/= being 12 months gross pay for unlawful and unfair termination
- 5.Interest at court rates from the date of judgment until payment in full
- 6.Respondent to pay the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Sections 41, 43, 45, 47(5), 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Mbugua v Unilever Kenya Limited [2014] KEELRC 5 (KLR)", Case Analysis (2014). Memorandum of Claim filed 4th January 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/5/eng@2014-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.