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ELRCAllowedCause No. 1241 of 2011· [2015] KEELRC 739 (KLR)

Sophia Kerre & 10 others v Augustana College Limited [2015] KEELRC 739 (KLR)

Employment and Labour Relations Court
13 July 2015
HWHellen S. Wasilwa
1,071 words in judgment
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The bottom line

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Kenya's Employment Court ruled that firing staff verbally without reasons or a hearing was unfair, awarding 11 former Augustana College workers their dues and costs.

What this practically means

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Executive summary

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Eleven former employees of Augustana College Limited (a secretary, lecturers, library staff and security guards employed between 1996 and 2010) filed a Memorandum of Claim on 25 July 2011 through K. A. Nyachoti & Company Advocates, complaining that in April 2010 the Respondent verbally terminated their services without paying terminal benefits, without reasons and without a hearing, contrary to natural justice. They sought a declaration that the termination was unlawful and null and void, payment of terminal dues totalling Kshs. 1,891,977 with interest and costs, and certificates of service. The Respondent, though served and appearing in court severally, filed no defence, no documents and no submissions. The court found the Claimants' employment proved by contracts and payslips, uncontroverted by any evidence from the Respondent. Applying Sections 35, 41, 43 and 45(1) and (2) of the Employment Act, 2007, Justice Hellen S. Wasilwa held that a verbal termination without reasons or a hearing was unfair, the employer having failed to prove a valid and fair reason or a fair procedure. The court found for the Claimants as prayed and awarded each claimant itemised dues comprising one month's salary in lieu of notice, salary arrears, unremitted deducted bank and HELB loans where applicable, and gratuity. Each Claimant was to be issued with a Certificate of Service, and the Respondent was ordered to pay the costs of the suit. Judgment was read in open court on 13 July 2015.

Key legal issues

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01

Whether the termination of the Claimants' employment was fair and lawful

Holding

The termination was unfair and unlawful because the Respondent gave no reasons and afforded no hearing, contrary to Sections 41, 43 and 45 of the Employment Act, 2007.

Reasoning

The Claimants proved their employment through contracts and payslips. The Respondent, though served, filed no defence, no documents and no submissions, leaving the Claimants' evidence uncontroverted. The termination was verbal, with no reasons given and no hearing afforded, breaching the procedural and substantive fairness requirements of the Employment Act. The court therefore found the terminations unfair under Section 45(1) and (2) and awarded the terminal dues claimed.

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02

Whether uncontroverted evidence of employment and non-payment of terminal dues suffices to sustain the claim

Holding

Yes; unchallenged evidence of contracts and payslips proved the employment and entitlement to terminal benefits.

Reasoning

The Respondent was served and appeared in court severally but neither filed a defence nor documents nor submissions. In the absence of any evidence to counter the Claimants' proof of employment and non-payment, the court accepted the Claimants' account and awarded the enumerated terminal dues, notice pay, arrears, unremitted deductions and gratuity, plus certificates of service.

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Legal principles established

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  • Before terminating an employee's employment, an employer must give valid and fair reasons and afford the employee a hearing; failure to do so renders the termination unfair under Section 45 of the Employment Act.
  • Unexplained verbal termination without hearing or reasons, uncontroverted by evidence, establishes unfair termination.

Court orders

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  1. 1.Declaration that the termination of the Claimants' services was unfair and unlawful
  2. 2.Award to each of the 11 Claimants of one month salary in lieu of notice, salary arrears, unremitted statutory/deducted loans where applicable, and gratuity as itemised in the judgment (aggregate claim of 1,891,977/=)
  3. 3.Each Claimant to be issued with a Certificate of Service
  4. 4.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 35
  • Employment ActSection 43
  • Employment ActSection 45(1) and (2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under Sections 35, 41, 43 and 45)

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, "Sophia Kerre & 10 others v Augustana College Limited [2015] KEELRC 739 (KLR)", Case Analysis (2015). Cause No. 1241 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/739/eng@2015-07-13

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