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ELRCPartially AllowedCause No 168 of 2013· [2014] KEELRC 102 (KLR)

Denis Maina Gathanju v Land & Marine Publications (K) Ltd [2014] KEELRC 102 (KLR)

Industrial Court of Kenya
26 November 2014
LNLINNET NDOLO
1,425 words in judgment
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The bottom line

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A Kenyan employer who fires an employee without stating a reason and without a disciplinary hearing will pay damages, costs and interest.

What this practically means

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Executive summary

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The Claimant, formerly Editorial Director of the Respondent, sued for unfair termination after the Respondent's Managing Director, Gary Gimson, demanded his resignation on 7th June 2012 and subsequently denied him access to the premises. The Claimant sought salary for six days worked in June 2012, notice pay, leave pay for 35 days, twelve months' salary as compensation, a certificate of service, costs and interest. The Respondent, which filed a Response but called no witnesses, alleged nepotism, financial impropriety and absenteeism, and asserted the Claimant was given a chance to respond and had requested the option to resign; it also denied authorship of an e-mail dated 9th April 2012, claiming the Claimant hacked the Managing Director's account. The court framed two issues: whether the termination was justifiable and fair, and whether the Claimant was entitled to the reliefs sought. Applying Sections 43, 45 and 41 of the Employment Act, 2007, the court found the Managing Director's letter disclosed no reason for termination and that the allegations raised in the Response were never put to the Claimant. It held the termination unfair both substantively and procedurally, emphasising that an employer cannot re-enact a disciplinary process before the court. The Claimant was awarded four months' salary as compensation, one month's notice pay, leave pay for the full service period, salary for six days worked, a certificate of service, costs and interest, totalling Kshs. 1,333,000.

Key legal issues

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01

Substantive justification for termination

Holding

Termination was unfair for want of substantive justification as no reason was stated at the time of termination

Reasoning

The Managing Director's letter of 7th June 2012 gave the Claimant an opportunity to resign but disclosed no reason for termination. The allegations later raised in the Response were not put to the Claimant at the time. Applying Section 43 of the Employment Act, the employer failed to prove the reasons, so the termination is deemed unfair under Section 45.

p. 3
02

Procedural fairness under Section 41 of the Employment Act

Holding

Termination was unfair for lack of due process as the mandatory disciplinary procedure was not followed

Reasoning

Section 41 requires the employer to explain the reasons for termination, allow an employee representative, and hear explanations. There was no evidence the Claimant was subjected to any such process. Section 12 also requires employers with more than 50 employees to document internal disciplinary rules, which was not demonstrated.

p. 3
03

Entitlement to reliefs

Holding

Claimant awarded 4 months' salary compensation, notice pay, leave pay for the entire service period, salary for 6 days worked, and a certificate of service

Reasoning

Compensation was assessed at 4 months' salary considering length of service and the Respondent's conduct. Leave pay was awarded in full because the Respondent produced no leave records to disprove the claim. The claim for 6 days' salary in June 2012 succeeded. Certificate of service granted as of right.

p. 4

Legal principles established

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  • The employer bears the burden of proving the reason(s) for termination; failure to do so renders the termination unfair under Section 45 of the Employment Act
  • An employer must take the employee through a disciplinary process before termination and cannot re-enact that process before the Court

Court orders

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  1. 1.4 months' salary in compensation for unfair termination - Kshs. 860,000
  2. 2.1 month's salary in lieu of notice - Kshs. 215,000
  3. 3.Leave pay for 2011 - Kshs. 150,500
  4. 4.Prorata leave pay for 2012 - Kshs. 64,500
  5. 5.Salary for 6 days worked in June 2012 - Kshs. 43,000
  6. 6.Total award of Kshs. 1,333,000 with interest at court rates from date of award until payment in full
  7. 7.Claimant entitled to a certificate of service
  8. 8.Respondent to meet the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 12

Cases cited (1)

  • John Otieno Mukabi Vs Kenya Builders & Concrete Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations jurisdiction under the Industrial Court (first-instance employment cause under the Employment Act, 2007)

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, "Denis Maina Gathanju v Land & Marine Publications (K) Ltd [2014] KEELRC 102 (KLR)", Case Analysis (2014). Cause No 168 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/102/eng@2014-11-26

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