Everlyne Mamai v One Acre Fund [2014] KEELRC 1375 (KLR)

The respondents alleged that the claimant habitually abused, threatened and harassed junior staff, conduct which would fall under section 44(4)(d) of the Employment Act. The court examined the evidence of the five respondents' witnesses and noted that none stated that the claimant abused them; witnesses RW1, RW2, RW3 and RW5 instead spoke of alleged irregular payments or fraud. Since the grounds in the termination letter (threatening staff and unprofessional conduct) were unsupported by proof of abusive or insulting language, the court held the alleged misconduct was not established.

The court held that even absent gross misconduct, termination would have been lawful only if due process had been followed. Section 41 of the Employment Act requires an employer, before terminating an employee on grounds of misconduct, to explain the reasons and hear the employee's representations, including allowing an employee or shop floor union representative to be present. The claimant was given neither a show cause letter nor proper reasons for her dismissal, breaching the statutory right to be heard and rendering the termination substantively and procedurally unfair.

Having found the dismissal wrongful and unlawful, the court assessed remedies: accrued salary to 10 June 2013 of Kshs 10,190; one month's salary in lieu of notice at Kshs 53,164 being the claimant's gross salary at termination; and 12 months' salary for wrongful dismissal computed at Kshs 53,164 x 12 = Kshs 637,968, totalling Kshs 701,322 less statutory deductions. The court also ordered issuance of a certificate of service and awarded the claimant costs of the suit.