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ELRCAllowedCause No 89 of 2014· [2015] KEELRC 715 (KLR)

Mary Wangechi Maina v Board of Governors Moi Nyeri Complex Primary School [2015] KEELRC 715 (KLR)

Employment and Labour Relations Court
19 June 2015
1,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri court ruled that firing an employee for raising a workplace grievance is unfair, awarding her a full year's salary in compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent school as a cateress from 29.08.2005, sued in person claiming that her termination in 2012 was unlawful. Her case was that after reporting missing spoons, Kshs. 2,000.00 was deducted from her salary even though the spoons were recovered from a school bus; her grievances over the unrecovered deduction soured her relationship with the principal, who later alleged she failed to prepare special lunch as instructed and issued a warning letter, culminating in a termination letter dated 15.10.2012 citing neglect of duty and gross misconduct. The respondent's witnesses gave contradictory evidence: the principal (RW1) admitted the termination letter did not state a specific reason and could not recall who relayed the lunch instructions; the bursar (RW2) gave contradictory evidence on leave forms; and RW3 did not know if the claimant worked during school vacations. The court framed two issues: whether the dismissal was unfair, and whether other remedies were due. It held the termination unfair under sections 43 and 41 of the Employment Act, 2007 for want of a stated reason and of notice and hearing, and that pursuing a valid grievance could not justify dismissal under section 46(h). The court awarded the declaration sought, one year's salary as compensation under section 49, leave pay of Kshs. 78,453.90 for untaken leave, the Kshs. 2,000.00 deduction refund, and a certificate of service under section 51, totalling Kshs. 297,585.90 with interest, plus costs fixed at Kshs. 25,000.00.

Key legal issues

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01

Substantive and procedural fairness of termination

Holding

The termination was unfair both procedurally and in substance.

Reasoning

The termination letter did not state the specific reason for termination, and the principal admitted this. No notice or hearing was given as required by section 41. The alleged grounds (failure to prepare special lunch and delayed response to a summons) were not substantiated; the recoverable deduction grievance could not found dismissal.

p. 2
02

Entitlement to one year's salary as compensation

Holding

Claimant awarded one year's salary as compensation under section 49 of the Employment Act.

Reasoning

Having established unfair termination and that the respondent failed to address her valid grievances before dismissing her without due process, the claimant fell within the circumstances warranting the statutory maximum compensation of twelve months' gross salary.

p. 2
03

Leave pay for untaken leave days

Holding

Claimant established outstanding leave days and was entitled to pay as claimed.

Reasoning

Leave forms completed by the claimant were on record, being the respondent's own leave system design, and the respondent's contradictory evidence (RW2 and RW3) did not render the claim improbable. The claim for leave days as prayed was therefore established.

p. 2
04

Unlawful salary deduction of Kshs. 2,000.00

Holding

Deduction was unlawful and refund awarded.

Reasoning

The 100 spoons said to be missing were in fact recovered from the school bus by the head cook, yet the principal deducted Kshs. 2,000.00 from the claimant's salary and refused to refund it even after recovery. The deduction was therefore unjustified.

p. 2
05

Certificate of service

Holding

Claimant entitled to a certificate of service under section 51 of the Act.

Reasoning

Section 51 of the Employment Act entitles an employee to a certificate of service upon termination; the court ordered delivery of the certificate by a stated date.

p. 2

Legal principles established

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  • An employer must assign a specific valid reason for termination, failing which the termination is unfair under section 43 of the Employment Act.
  • Termination without notice and hearing breaches section 41 of the Employment Act and is procedurally unfair.
  • Pursuing a valid grievance cannot constitute a valid reason for termination under section 46 of the Employment Act.

Court orders

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  1. 1.Declaration that the termination of the claimant's employment was without any legal and factual basis and consequently illegal and unlawful
  2. 2.Respondent to pay the claimant Kshs. 297,585.90 by 1.09.2015 failing interest at court rates from the date of judgment until full payment
  3. 3.Respondent to deliver to the claimant a certificate of service by 1.07.2015
  4. 4.Costs of the suit to the claimant, fixed at Kshs. 25,000.00

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 46(h)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 46, 49, 51 applied)

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, "Mary Wangechi Maina v Board of Governors Moi Nyeri Complex Primary School [2015] KEELRC 715 (KLR)", Case Analysis (2015). Cause No 89 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/715/eng@2015-06-19

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