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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 806 (KLR)

Bumali Musana v Bhayani Nursery & Primary School [2014] KEELRC 806 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
12 February 2014
HWHellen Wasilwa
1,012 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, Bumali Musana, filed a memorandum of claim on 23 July 2013 alleging that his employment of 23 years with the respondents was unlawfully terminated on 20 October 2012 after he condemned cheating in end-of-year examinations. He sought a declaration that the termination was unlawful, reinstatement with benefits, notice pay, severance pay, salary and house allowance underpayments, damages, a certificate of service and costs. The respondents contended that he was dismissed for misbehaviour, including refusing to sign a warning letter, and that his dues were paid by cheque. The court framed two issues: whether the termination was justified, and whether the claimant was entitled to the remedies sought. On the first issue, the court found that although the reasons for termination were communicated as required by Section 43 of the Employment Act, the claimant was never accorded a hearing as mandated by Section 41(1) and (2), contravening Article 50(1) of the Constitution; the termination was therefore unfair under Section 45(1). On remedies, the court refused notice pay (already paid into his bank), severance pay (barred by Section 35(6) as he was an NSSF contributor) and underpayments (unproven). The court allowed the certificate of service and awarded 12 months' salary (Kshs 207,312) as compensation for unfair termination, with interest and costs to the claimant. Judgment was delivered by Hellen Wasilwa, Judge, on 12 February 2014.

Key legal issues

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01

Whether the termination of the claimant was justified

Holding

The termination was unjustified and unfair because the claimant was not accorded a hearing before termination.

Reasoning

Although the termination letter set out reasons for termination, satisfying the notification requirement of Section 43 of the Employment Act, those reasons had to be proved through the procedure in Section 41(1) and (2), which requires an explanation to the employee and hearing of representations. The claimant was given no hearing, breaching Section 41 and Article 50(1) of the Constitution. The termination was therefore unfair under Section 45(1).

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02

Whether the claimant was entitled to notice pay, severance pay, underpayments, certificate of service and damages

Holding

Notice pay refused (already paid), severance pay refused (NSSF contributor), underpayments unproven; certificate of service and 12 months' salary as compensation for unfair termination awarded.

Reasoning

The court examined each head of claim against the evidence and the statute. Notice pay was evidenced as already paid; Section 35(6) bars service pay for NSSF contributors; the underpayments claim lacked proof. The certificate of service was found justifiable, and the unfairness of the termination justified maximum compensation of 12 months' salary computed at Kshs 17,276 per month.

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Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, explain the reasons to the employee in a language the employee understands, hear and consider the employee's representations, and allow an employee or union representative to be present, per Section 41(1) and (2) of the Employment Act.
  • Termination without affording the employee a hearing violates Section 41 of the Employment Act and Article 50(1) of the Constitution and is unfair under Section 45(1).
  • An employee who is a contributor to the National Social Security Fund is not entitled to service/severance pay by virtue of Section 35(6) of the Employment Act.

Court orders

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  1. 1.Declaration that the termination was unfair by virtue of Section 45(1) of the Employment Act
  2. 2.Claimant to be issued with a certificate of service
  3. 3.Respondents to pay the claimant 12 months' salary (Kshs 207,312) as compensation for unfair termination
  4. 4.Interest on the compensation amount plus costs of the suit

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 43
  • Employment ActSection 45(1)
  • Employment ActSection 35(6)
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
  • Constitution of Kenya 2010Article 50(1)
Jurisdiction invoked
Original jurisdiction over employment and labour relations disputes (memorandum of claim filed under the Employment Act)

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, "Bumali Musana v Bhayani Nursery & Primary School [2014] KEELRC 806 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/806/eng@2014-02-20

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