Catherine Wambui Kariuki v Nyambura Gicuhi [2015] KEELRC 140 (KLR)
The bottom line
#A Kenyan court ruled a dismissal unfair because the employer skipped the required hearing and never gave a valid reason to the employee.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness under section 41 of the Employment Act
The Respondent failed to hear the Claimant in the presence of a witness and did not bring the substantive reason for dismissal to her attention, breaching a mandatory provision and amounting to procedural unfairness.
Section 41(2) requires an employer, before summarily dismissing an employee under section 44(3) or (4), to hear and consider representations on grounds of misconduct or poor performance. The Respondent admitted failing to follow section 41 by not hearing the Claimant in the presence of a witness. This admitted failure was a breach of a mandatory provision, constituting procedural unfairness under section 45.
Substantive fairness of the reason for dismissal
The reasons advanced for the summary dismissal (poor performance and breach of confidentiality) did not constitute grounds for summary dismissal; the substantive reason was never brought to the Claimant's attention and the warnings did not relate to breach of confidentiality.
The Respondent relied on poor performance, but gave no evidence of support, appraisal or timelines for improvement, particularly for an employee hired without prior training who was trained on the job. The later-introduced reason of breach of confidentiality was never communicated to the Claimant and the prior warnings did not relate to it. Termination on such a basis was an unfair labour practice contrary to section 45.
Absence of a written contract of employment
The absence of a written contract, a mandatory duty of the employer under sections 9 and 10 of the Employment Act, meant the Claimant's word became critical for the court.
Sections 9 and 10 of the Employment Act require a written contract to be issued on or before commencement of employment, or not later than two months thereafter. No party mentioned an employment contract, and this duty vests on the employer. In its absence, the court relies on the employee's word, and the employer cannot rely on contractual terms to justify the dismissal.
Duty to train and support an unskilled employee
Where an employer hires an employee without prior training and trains her on the job, the duty to impart requisite skills lies with the employer; termination for failing to meet expectations she was never equipped for is an unfair labour practice.
The Respondent, a Dentist, employed the Claimant knowing she had no prior training in dental procedures. On-the-job training would require constant appraisal, review and timelines. It was an unreasonable expectation that within the short employment period the Claimant would be conversant with professional duties equivalent to a Dentist's, and terminating her on that basis was unfair.
Legal principles established
#- Even where summary dismissal is justified under section 44, an employer must still adhere to the mandatory hearing requirements of section 41 of the Employment Act.
- The employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair under section 45.
- A written contract of employment is a legal requirement under sections 9 and 10 of the Employment Act, and its absence makes the employee's word critical before the court.
- An employer alleging poor performance must demonstrate the efforts, support mechanisms and timelines put in place to address the poor performance before termination.
Court orders
#- 1.Notice pay awarded at Kshs.16,000.00
- 2.Compensation for unfair termination awarded at 12 months' salary, being Kshs.192,000.00
- 3.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (termination of employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Wambui Kariuki v Nyambura Gicuhi [2015] KEELRC 140 (KLR)", Case Analysis (2015). Cause No. 1572 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/140/eng@2015-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.