Erwan Lanoe v Five Forty Aviation Limited [2015] KEELRC 42 (KLR)
The bottom line
#A Kenyan court awarded a pilot over Kshs 11 million after his employer wrongly used a work permit issue to fire him without a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was for a valid reason
The termination was for no valid reason; the work permit objection was a pretext and the Claimant was legally resident and able to work on a class H permit.
The court found the Claimant held a valid class H permit granted in 2009 and renewed, which the Respondent knew throughout the four-year engagement. There was no evidence he misrepresented himself as a Kenyan. The Respondent only questioned the permit's validity after the Claimant demanded incentive arrears. The addendum reducing salary was found not to be a valid variation of the initial contract. The termination was therefore in breach of contract and contrary to sections 43 and 45 of the Employment Act.
Whether the dismissal followed a fair procedure
The termination was summary and effected without any disciplinary hearing, in a malicious manner following the Claimant's demand for accrued incentives.
The Respondent admitted no disciplinary hearing was held, contending it was unnecessary because termination was for illegality. The court found the conduct mischievous: the Respondent had employed the Claimant in 2010 on the basis of the class H permit with full knowledge, and it was not illegal for the Claimant to provide flying services on that basis. The failure to give notice or pay for days worked aggravated the loss.
What remedies are payable
One month's pay in lieu of notice, salary for 13 days worked, accrued incentive arrears of Kshs 2,293,962, and eight months' salary as compensation under section 49(1)(c); payment for the unserved term refused.
The contract was open-ended, so specific payment for the unserved term was inappropriate; compensation under section 49(1)(c) was granted considering length of service (four years and five months), good record, and aggravating factors including malicious failure to give notice and the ruse used to get rid of the Claimant. Incentives were payable as the Claimant proved on a balance of probability he flew the claimed extra hours.
Legal principles established
#- A foreign national working in Kenya on a valid class H entry/residence permit does not render the employment contract illegal where the employer knew of the permit throughout the engagement.
- An employer who raises illegality (lack of work permit) only after the employee claims accrued dues may be found to have used the permit issue as a pretext for unfair termination.
- Summary termination without a disciplinary hearing breaches the fair procedure requirement even where the employer alleges illegality.
Court orders
#- 1.Declaration that the Claimant's dismissal was unlawful and unfair (termination in breach of contract and contrary to sections 43 and 45 of the Employment Act)
- 2.Kshs 925,560 in lieu of notice
- 3.Kshs 501,480.40 for 13 days salary arrears
- 4.Kshs 2,293,962.00 accrued arrears incentives
- 5.Kshs 7,406,480 being 8 months' compensation for unlawful and unfair termination (total award Kshs 11,130,483)
- 6.Interest at court rates from date of filing suit till payment in full
- 7.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erwan Lanoe v Five Forty Aviation Limited [2015] KEELRC 42 (KLR)", Case Analysis (2015). Cause No. 2157 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/42/eng@2015-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.