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ELRCPartially AllowedCause No 853 of 2012· [2014] KEELRC 988 (KLR)

Jessy Olukutukei v Feed the Children Kenya & another [2014] KEELRC 988 (KLR)

Industrial Court of Kenya
15 May 2014
LNLINNET NDOLO
2,324 words in judgment
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The bottom line

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A Kenyan court ruled an employee's dismissal was unfair because his employer skipped the legally required hearing process, awarding him six months' salary despite a valid reason for dismissal.

What this practically means

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Executive summary

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The Claimant, Operations Manager of Feed the Children Kenya from 1st July 2007, was summarily dismissed on 17th February 2012 following hostile e-mail exchanges with the Deputy Country Director, Nazareno Ngare. He claimed notice pay, the unexpired contract term, 12 months' salary for unfair termination, service gratuity, a certificate of service and costs against the 1st Respondent and its Regional Director, Seintje Veldhuis. The Respondents justified the dismissal as summary dismissal for misconduct and breach of the Code of Conduct, after failed reconciliation efforts and disciplinary proceedings. The Court framed two issues: whether there was a valid reason for termination, and whether fair procedure under Section 41 of the Employment Act, 2007 was followed. On the first issue it held the Respondent had a valid reason arising from the disharmonious relationship. On the second, it found no compliance with Section 41's minimum procedural requirements and that the Respondent's own internal disciplinary rules were not adhered to, rendering the termination unfair. The Court awarded six months' salary (Kshs 1,650,000) in compensation plus one month's notice pay (Kshs 275,000), subject to statutory deductions and attracting interest. Claims for the unexpired contract term and service gratuity were dismissed, as was the claim against the 2nd Respondent. Each party was ordered to bear its own costs, and the Claimant was awarded a certificate of service.

Key legal issues

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01

Valid reason for termination

Holding

The 1st Respondent had a valid reason for terminating the Claimant's employment based on the e-mail correspondence and disharmonious working relationship

Reasoning

The Court analysed the e-mail exchanges between the Claimant and Nazareno Ngare, finding a disharmonious working relationship that was a major concern to management. Applying Section 43, the judge concluded a reasonable employer would be moved to terminate on those grounds, so the substantive validity requirement of Section 45(2) was satisfied.

p. 4
02

Procedural fairness under Section 41

Holding

Termination was procedurally unfair for non-compliance with Section 41 and the employer's internal disciplinary rules; compensation of six months' salary awarded

Reasoning

Although some managers had discussed the issues with the Claimant, there was no evidence he was taken through the minimum requirements of Section 41. The Respondents' own witness admitted internal disciplinary rules were not followed. The Court therefore found procedural unfairness and awarded six months' salary, mitigated by the Claimant's responses and the Respondents' reneging on the exit plan.

p. 5

Legal principles established

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  • The employer bears the burden under Section 43 of the Employment Act to prove the reason(s) for termination, failing which the termination is deemed unfair under Section 45
  • Procedural fairness under Section 41 requires explanation of reasons to the employee, presence of a representative, hearing of explanations, and compliance with the employer's own internal disciplinary rules where applicable
  • Employers must clearly notify employees that they are facing a disciplinary process

Court orders

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  1. 1.Award of six months' salary (Kshs 1,650,000) in compensation for unfair termination
  2. 2.Award of one month's salary in lieu of notice (Kshs 275,000)
  3. 3.Claim against the 2nd Respondent dismissed
  4. 4.Claim for unexpired contract term dismissed
  5. 5.Claim for service gratuity dismissed
  6. 6.Award subject to statutory deductions under Section 49(2) of the Employment Act, 2007, with interest at court rates from the date of the award until payment in full
  7. 7.Claimant entitled to an original certificate of service
  8. 8.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 49(2)

Cases cited (2)

  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    [2013] eKLR
  • Nazareno Kariuki Vs Feed the Children Kenya
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim for unfair termination under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "Jessy Olukutukei v Feed the Children Kenya & another [2014] KEELRC 988 (KLR)", Case Analysis (2014). Cause No 853 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/988/eng@2014-05-15

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