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ELRCPartially AllowedCause No. 1478 of 2013· [2015] KEELRC 737 (KLR)

Esther Mwenge v Arfa Arfa Limited [2015] KEELRC 737 (KLR)

Employment and Labour Relations Court
17 July 2015
1,406 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a cashier 12 months' salary because her employer could not prove why it fired her or give her a hearing.

What this practically means

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Executive summary

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The Claimant, employed as a cashier from 1 April 2012 at a monthly salary rising from Kshs 16,299 to Kshs 19,361, was dismissed on 1 July 2013. She claimed unlawful dismissal, payment in lieu of notice, holding pay and gratuity, and also alleged unpaid overtime and denial of leave, claiming a total of Kshs 771,295.90. The Respondent asserted she was dismissed for breaching company policy by failing to enter sales in the system, acts of dishonesty and disobeying lawful orders, and alleged prior verbal warnings. The court framed three issues: validity of reasons for dismissal, procedural fairness, and entitlement to remedies. Applying Sections 43, 41 and 45 of the Employment Act 2007, the court found the Respondent's reasons inconsistent - alternating between theft, failure to record sales and stock losses - and unproven, and noted that its own witness confirmed the Claimant worked well and was employee of the year in June 2013. No minutes of any disciplinary hearing were produced, and the Respondent's own Terms and Conditions of Service prescribing a staged disciplinary procedure were flouted. The court declared the termination unfair and wrongful. The Claimant was awarded one month's pay in lieu of notice (Kshs 25,651), leave pay for 2012/2013 (Kshs 25,651), and 12 months' pay as damages for unlawful termination (Kshs 307,812), totalling Kshs 359,114, plus a certificate of service and costs. The overtime claim was declined for lack of proper computation and the holding pay and gratuity heads were not awarded.

Key legal issues

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01

Whether there were valid reasons to warrant dismissal of the Claimant

Holding

The reasons given were inconsistent and unproven; the termination was unfair under Section 45(1) & (2) of the Employment Act 2007

Reasoning

The Respondent's allegations shifted between theft, failure to enter sales, and failure to account for stocks. Section 43 requires the employer to prove the reasons for termination; the sole witness merely repeated the defence and confirmed the Claimant was employee of the year in June 2013. The reasons thus remained mere allegations and were not proved to the standard required.

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02

Whether due process was followed before the Claimant's dismissal

Holding

No hearing was conducted and the Respondent flouted its own disciplinary procedure; the dismissal was procedurally unfair

Reasoning

Section 41 of the Employment Act requires an employer to explain the reasons for contemplated termination and hear the employee's representations. The Respondent's own Terms and Conditions of Service prescribed a staged disciplinary procedure with warnings and a disciplinary meeting. No minutes or evidence of any such hearing were produced, so neither the statutory nor the contractual procedure was followed.

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Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded one month's pay in lieu of notice, leave pay for 2012/2013, 12 months' pay as damages for unlawful termination and a certificate of service; overtime was declined for lack of computation

Reasoning

Although the Claimant exhibited an attendance sheet showing she worked beyond 8 hours, her payslips indicated an overtime payment of 1,500/= and she made no proper computation of overtime payable, so the court declined that head. For the successful heads, the court awarded notice pay, leave pay and the equivalent of 12 months' salary as damages for the unfair termination, plus a certificate of service and costs.

p. 4

Legal principles established

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  • An employer must prove the reasons for termination, and failure to do so renders the termination unfair under Section 45 of the Employment Act
  • Allegations of misconduct must be proved, not left as mere allegations, and the employee must be given a hearing under Section 41 before termination

Court orders

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  1. 1.Payment of 1 month pay in lieu of notice of Kshs 25,651
  2. 2.Leave pay for year 2012/2013 of Kshs 25,651
  3. 3.12 months pay as damages for unlawful termination of Kshs 307,812 (total award Kshs 359,114)
  4. 4.Respondent to issue the Claimant with a Certificate of Service
  5. 5.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 45(1) & (2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45) over a claim for unlawful dismissal

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, "Esther Mwenge v Arfa Arfa Limited [2015] KEELRC 737 (KLR)", Case Analysis (2015). Cause No. 1478 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/737/eng@2015-07-17

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