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ELRCPartially AllowedCase No. 96 of 2014· [2015] KEELRC 222 (KLR)

George Odiyo Minyika v Chemilil Sugar Co Ltd [2015] KEELRC 222 (KLR)

Employment & Labour Relations Court
20 November 2015
MOMaureen Onyango
1,687 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Chemilil Sugar was ordered to pay a former fitter over Shs 1.8 million after unfairly sacking him for suing over a workplace injury.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Fitter from 1989, alleged unfair termination of his employment on 17th February 2014 following a workplace injury to his left thumb and a successful civil claim against the company in which he was awarded general damages of Shs.400,000. He sought severance pay in lieu of notice, damages for wrongful dismissal, half salary withheld during suspension, accumulated leave, reinstatement, costs and interest. The Respondent denied the termination was unlawful. The court framed two issues: whether the termination was fair and whether the Claimant was entitled to the prayers sought. On the evidence, three inconsistent reasons for termination emerged from the show cause letter, the termination letter and the testimony of RW1, and no record of the disciplinary hearing was availed. Applying sections 41, 43, 45 and 46(b) of the Employment Act, the court held that the reason for termination must be ascertainable and unequivocal, found no valid reason existed, and held that the trigger was the Claimant's lawful suit against the employer, which could not ground disciplinary action. The termination was therefore unfair. Reinstatement, not pursued in testimony or submissions, was treated as abandoned. The court awarded salary for days worked, three months' notice pay, accumulated leave, gratuity at 25 days per year for 25 years of service, full salary for the 10-month suspension period, and maximum compensation of 12 months' salary, totalling Shs.1,842,520.40, subject to PAYE proof of remittance, plus costs and interest from the date of judgment.

Key legal issues

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01

Whether the termination of the Claimant's employment was fair

Holding

The termination was unfair - no valid reason was established and the trigger was the Claimant's suit against the employer

Reasoning

Three different reasons for termination emerged from the show cause letter, the termination letter and RW1's testimony. The court found the reason was not ascertainable or unequivocal. RW1 confirmed the trigger was the Claimant's injury suit in Tamu Civil Case No. 9 of 2012, in which the Respondent was held liable and paid damages without appealing. Under sections 41, 43 and 45 of the Employment Act the employer must prove valid reason and fair procedure, and under section 46(b) disciplining an employee for lawful legal proceedings is unfair. No record of the disciplinary hearing was produced. Termination was therefore unfair.

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02

Whether the Claimant is entitled to the prayers sought

Holding

The court awarded days worked, notice pay, leave, gratuity, full salary for the suspension period and maximum 12 months' compensation; reinstatement treated as abandoned

Reasoning

The court computed salary for days worked to 17th February 2014 (Shs.122,200.30), three months' notice pay (Shs.117,531), leave for 18.92 days (Shs.24,707.60) and gratuity at 25 days per year for 25 years (Shs.816,187.50). Because the termination was unfair, the Claimant was awarded full salary for the 10-month suspension period and maximum compensation of 12 months' salary given his 25 years of service and clean disciplinary record. Reinstatement was not pursued and was treated as abandoned. Total award: Shs.1,842,520.40.

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Legal principles established

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  • An employer must prove both a valid reason and fair procedure for termination; the reason must be ascertainable and unequivocal.
  • It is unfair to discipline an employee for filing legal proceedings against the employer unless the complaint is irresponsible and without foundation.

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent in the total sum of Shs.1,842,520.40
  2. 2.The award to be subject to PAYE provided the Respondent adduces proof of remittance to Kenya Revenue Authority, with PAYE spread over April 2013 and February 2014
  3. 3.The Respondent to pay the Claimant's costs of the suit
  4. 4.Interest to the Claimant from date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (s.41, 43, 45, 46)

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, "George Odiyo Minyika v Chemilil Sugar Co Ltd [2015] KEELRC 222 (KLR)", Case Analysis (2015). Case No. 96 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/222/eng@2015-11-20

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