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ELRCPartially AllowedCause No 203 of 2013· [2014] KEELRC 1214 (KLR)

Luka Matara Seremani v Hanelis Restaurant Limited [2014] KEELRC 1214 (KLR)

Industrial Court of Kenya
30 July 2014
LNLinnet Ndolo
1,358 words in judgment
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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, employed by the Respondent from 31st January 1992 and rising to the position of Assistant Manager, brought a claim for unfair termination following the dismissal of his employment on 1st April 2011. He sought a declaration of unfair termination, 12 months' salary in compensation, UK assignment salary arrears, three months' pay in lieu of notice, service pay for 19 years, costs and interest. The Respondent alleged negligence of duty and past incidents of sexual harassment, and maintained all terminal dues were paid. The Court framed three issues: validity of reason, fairness of procedure, and entitlement to reliefs. It found the first termination letter gave no reason, while a second letter citing negligence was never delivered and was backdated four days after the event. The sexual harassment allegations were unsupported by any evidence that the Claimant was required to respond to them. The termination was therefore both substantively and procedurally unfair under Sections 43, 45 and 41 of the Employment Act. The Court awarded 12 months' salary in compensation, two months' salary in lieu of notice as admitted by the Respondent, and service pay for seven years, since service pay had already been paid for the first 12 years. The claim for UK salary arrears failed for lack of evidence that the visa sponsorship figure was monthly salary. The Respondent was ordered to pay a total of Kshs. 405,234 with interest at court rates from the date of the award until payment in full, and to meet the costs of the case.

Key legal issues

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01

Validity of the reason for termination

Holding

The Respondent failed to establish a valid reason for the termination, rendering it substantively unfair under Section 45 of the Employment Act

Reasoning

The first termination letter gave no reason. The second letter citing negligence was never delivered and was backdated four days after the first. Allegations of sexual harassment were supported by caution letters the Claimant denied receiving, with no evidence he was required to respond to them.

p. 3
02

Procedural fairness of the termination

Holding

The termination was procedurally unfair for want of due process under Section 41 of the Employment Act

Reasoning

Section 41 requires the employer to explain the reasons for termination to the employee in a language they understand, allow a representative, and hear explanations. There was no evidence the Claimant was subjected to any disciplinary procedure.

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03

Compensation for unfair termination

Holding

12 months' salary awarded taking into account the Claimant's long service and the denial of an opportunity to respond to charges

Reasoning

Having found the termination both substantively and procedurally unfair, the Court exercised its discretion to award the maximum-equivalent 12 months' salary, considering long service of 19 years and the Respondent's failure to afford a hearing.

p. 3

Legal principles established

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  • An employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair under Section 45 of the Employment Act
  • A reason for termination cannot be manufactured after the event; a backdated letter cannot retrospectively justify a termination

Court orders

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  1. 1.12 months' salary in compensation for unfair termination of Kshs. 269,580
  2. 2.2 months' salary in lieu of notice of Kshs. 44,930
  3. 3.Service pay of Kshs. 90,724 (Kshs. 22,465/26 days x 15 days x 7 years)
  4. 4.Total award of Kshs. 405,234 with interest at court rates from the date of the award until payment in full
  5. 5.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
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court of Kenya 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, "Luka Matara Seremani v Hanelis Restaurant Limited [2014] KEELRC 1214 (KLR)", Case Analysis (2014). Cause No 203 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1214/eng@2014-07-30

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