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ELRCPartially AllowedIndustrial Court Cause — Memorandum of Claim dated 22nd March 2013, filed 25th March 2013· [2014] KEELRC 857 (KLR)

Edward Njuguna Mwangi v Thika High School Thr’ Bog Of Governors [2014] KEELRC 857 (KLR)

Industrial Court (Employment and Labour Relations Court)
3 February 2014
MOMAUREEN ONYANGO
1,997 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled Thika High School unfairly forced out its cook without a hearing, awarding him a full year's salary as compensation.

What this practically means

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Executive summary

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The Claimant, a cook at Thika High School employed in January 2005, alleged wrongful and unfair termination after he and fellow cooks stopped work on 3rd October 2011 protesting that they had been called thieves at the morning assembly. He sought declarations, constitutional compensation, unpaid salary, notice pay, punitive damages and 12 months' compensation. The Respondent denied terminating him, contending that he deserted duty. RW1, the Principal, admitted telling students the cooks were responsible for missing food, replacing the cooks with casuals, advertising their jobs, locking their staff houses, and not inviting the Claimant to a disciplinary hearing. The court framed two issues: whether the Claimant was unfairly dismissed, and his entitlement to terminal dues. It held that the failure to engage the cooks over their complaint, the locking of their houses, their replacement by casuals and the absence of any disciplinary hearing amounted to constructive dismissal, and that the Claimant was denied the hearing guaranteed by section 41 of the Employment Act, rendering the dismissal unfair. On remedies, the court awarded Kshs.1,076.80 unpaid October 2011 salary, Kshs.10,768 in lieu of notice, and full compensation of Kshs.129,216 being 12 months' gross pay under section 49(4). Claims for constitutional compensation and unpaid annual increments were dismissed for want of proof, and punitive and aggravated damages were refused as unavailable for breach of contract. The Respondent was ordered to pay the Claimant's costs, with interest from the date of judgment.

Key legal issues

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01

Whether the Claimant was unfairly dismissed

Holding

The circumstances amounted to constructive dismissal and the Claimant was denied a hearing under section 41 of the Employment Act; dismissal was unfair

Reasoning

RW1 admitted replacing the cooks with casuals, advertising their jobs and locking their houses, yet never invited the Claimant to a disciplinary hearing or addressed his complaint of being called thieves. The court found these acts amounted to constructive dismissal, and since no hearing was given in terms of section 41 of the Employment Act, the dismissal was unfair.

p. 3
02

Whether the Claimant is entitled to terminal dues as prayed

Holding

Entitled to unpaid October 2011 salary, one month's salary in lieu of notice and 12 months' gross pay as compensation; other heads dismissed

Reasoning

RW1 admitted the October 2011 salary was unpaid, and the appointment letter provided one month's salary in lieu of three months' notice. Considering length of service of just over six years, the manner of termination and section 49(4) factors, the court awarded full 12 months' compensation. Constitutional compensation, annual increments and punitive damages were dismissed for want of proof or being unsustainable in contract.

p. 4

Legal principles established

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  • Locking out an employee, replacing them and failing to afford a disciplinary hearing amounts to constructive dismissal contrary to section 41 of the Employment Act
  • Punitive and aggravated damages are not available for breach of an employment contract

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unprocedural and therefore unfair
  2. 2.Award of Kshs.1,076.80 being unpaid salary for October 2011
  3. 3.Award of Kshs.10,768 being one month's salary in lieu of notice
  4. 4.Dismissal of the claim for compensation for violation of constitutional rights for want of proof
  5. 5.Dismissal of the claim for unpaid salary for failure to increase salary every year for want of proof
  6. 6.Refusal of punitive and aggravated damages
  7. 7.Award of Kshs.129,216 being 12 months' gross pay as compensation under section 49(4) of the Employment Act
  8. 8.Respondent to pay the Claimant's costs of the suit
  9. 9.Interest payable from date of judgment

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 49(4)

Cases cited (3)

  • LIBERATA NJAU NJIIOKA V MAGADI SODA COMPANY LIMITED
    Industrial Court Cause No. 644 of 2010
  • FRANCIS N. GACHURI V ENERGY REGULATORY COMMISSION
    (2013) eKLR
  • COSMAS KAWELU V KABUITO CONTRACTORS
    Industrial Court Case No. 1991 of 2011
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (Employment Act, sections 41, 49(4))

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, "Edward Njuguna Mwangi v Thika High School Thr’ Bog Of Governors [2014] KEELRC 857 (KLR)", Case Analysis (2014). Industrial Court Cause — Memorandum of Claim dated 22nd March 2013, filed 25th March 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/857/eng@2014-03-19

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