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ELRCPartially AllowedCause No. 628 of 2014· [2015] KEELRC 108 (KLR)

Anastacia Wambui Wanjiru v Management of Medina Palms [2015] KEELRC 108 (KLR)

Employment and Labour Court of Kenya
11 December 2015
OMOnesmus Makau
1,352 words in judgment
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The bottom line

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Kenya's Employment Court awarded a hotel worker five months' salary for ending her fixed term contract without a fair hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent hotel as Food and Beverage Captain on a nine-month fixed term contract renewed to run until 12 March 2015, sued for terminal dues, salary for the unexpired contract period, and compensation for unfair termination after her services were ended on 30 October 2014. The respondent alleged she committed gross misconduct by denying a guest room service and then invading the guest's privacy by visiting his room to apologise. The suit proceeded exparte after the respondent failed to attend the hearing on 18 November 2015. The court found the claimant's evidence uncontroverted: she declined room service in obedience to the F&B Manager's directive, apologised to the guest on the same manager's instruction, and had a clean disciplinary record. The respondent's managers who effected the termination never testified, and no evidence proved compliance with section 41 of the Employment Act, which requires an explanation to the employee, a language the employee understands, an accompanying companion of choice, and an opportunity to make representations before termination. The court held the termination substantively and procedurally unfair and unjustified. Applying the rule that damages for premature termination of a fixed term contract equal total earnings for the unexpired period plus accrued benefits, the court awarded Kshs. 120,000 for five months' outstanding salary, plus Kshs. 5,538 accumulated overtime, Kshs. 4,615 for three rest days worked and Kshs. 2,855 service charge. Compensation for unfair termination was refused as it would constitute double benefit. Judgment was entered for the claimant for Kshs. 133,008 plus costs and interest.

Key legal issues

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01

Whether the termination of the claimant's fixed term contract was unfair and unjustified

Holding

The termination was unfair and unjustified because the claimant acted on her manager's directive and was not accorded a fair hearing under section 41 of the Employment Act

Reasoning

The claimant's uncontroverted evidence established that she declined room service on her manager's directive, apologised to the guest on the same manager's instruction, and had a clean service record. The respondent adduced no evidence: the Human Resource Manager, General Manager and F&B Manager never testified to prove compliance with section 41. On a balance of probability, the termination was substantively and procedurally unfair.

p. 2
02

What remedies flow from unfair premature termination of a fixed term contract

Holding

The claimant was awarded salary for the unexpired 5 months of the contract plus accrued benefits, but no separate compensation for unfair termination

Reasoning

Damages for premature termination of a fixed term contract equal total earnings for the unexpired period plus accrued benefits. Since the award of the unexpired salary already placed the claimant in the position she would have occupied, awarding compensation for unfair termination would confer a double benefit and unfair enrichment.

p. 3

Legal principles established

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  • Damages for premature termination of a fixed term contract are the total earnings for the unexpired period of the contract plus accrued benefits
  • An employer must comply with section 41 of the Employment Act before terminating an employee for misconduct

Court orders

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  1. 1.Judgment entered for the claimant for the sum of Kshs. 133,008/= plus costs and interest

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 44(3) and (4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Anastacia Wambui Wanjiru v Management of Medina Palms [2015] KEELRC 108 (KLR)", Case Analysis (2015). Cause No. 628 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/108/eng@2015-12-11

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