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ELRCPartially AllowedCause No. 822 of 2011· [2015] KEELRC 741 (KLR)

Michael Muchui v Shemay Limited [2015] KEELRC 741 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
15 July 2015
844 words in judgment
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The bottom line

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Kenya's Employment Court ruled that employees with under 13 months' service cannot claim unfair termination, but short-serving workers still get notice pay and other dues.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 15th May 2009 as a Site Coordinator at a monthly salary of Kshs. 50,000/= to supervise construction works at Aga Khan Hospital, sued for unlawful termination of employment on 10th August 2009. He alleged he was dismissed without notice, hearing, Certificate of Service or his August 2009 salary, and claimed reimbursement of Kshs. 20,000/= incurred in setting up the site office's computer, internet and software. The Respondent countered that the Claimant was on a three-month trial basis, that his contract was to be formalised only if he proved competent, and that he was summarily dismissed for gross misconduct - negligence in failing to check the quality of piping on site. The court framed two issues: whether the termination was unfair, and what remedies the Claimant was entitled to. It found the Respondent had failed to prove the gross misconduct alleged under Section 44(4) of the Employment Act, noting the Respondent should have called evidence, including from the hospital, of the alleged omission. However, applying Section 45(3) of the Employment Act, the court held that only employees with at least 13 months' continuous service can complain of unfair termination, and the Claimant, having served only 3 months, could not do so. The claim succeeded only in part: the court awarded one month's salary in lieu of notice (Kshs. 50,000/=), 10 days' salary for August 2009 (Kshs. 19,230/=), totalling Kshs. 69,230/=, plus costs of the suit, and ordered the Respondent to issue a Certificate of Service.

Key legal issues

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01

Whether the summary dismissal for gross misconduct was justified

Holding

The Respondent failed to prove the alleged gross misconduct under Section 44(4) of the Employment Act; the dismissal was not justified, though the claim of unfair termination fails for want of the statutory 13 months' service.

Reasoning

The Respondent alleged the Claimant was negligent in failing to check the quality of piping, amounting to gross misconduct justifying summary dismissal. Gross misconduct incidents are set out under Section 44(4) of the Employment Act. The court held the Respondent did not prove the allegations and should have called evidence, even from Aga Khan Hospital, of the alleged omission, which it did not do. Despite this failure, the statutory service threshold barred the unfair termination claim.

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02

Whether the Claimant could complain of unfair termination

Holding

No. Having worked only 3 months, the Claimant does not meet the 13-month continuous employment requirement in Section 45(3) of the Employment Act.

Reasoning

Section 45(3) of the Employment Act 2007 grants the right to complain of unfair termination only to employees continuously employed for not less than thirteen months immediately before termination. The court reasoned this threshold is actuated by the maximum 12-month probation period. As the Claimant served only about 3 months, from May to August 2009, he cannot allege unfair termination, though he remains entitled to notice pay and accrued salary.

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03

What remedies is the Claimant entitled to

Holding

One month's salary in lieu of notice (Kshs. 50,000/=), 10 days' salary for August 2009 (Kshs. 19,230/=), costs of the suit, and a Certificate of Service.

Reasoning

Although the unfair termination claim failed on the statutory threshold, the court found the dismissal unproved as gross misconduct and therefore awarded contractual/statutory entitlements: one month's salary in lieu of notice at the agreed monthly salary of Kshs. 50,000/=, and 10 days' salary for August 2009 computed at Kshs. 19,230/=. The court also ordered costs of the suit and directed issuance of a Certificate of Service, which the Claimant said he was never given.

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Legal principles established

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  • Only an employee with not less than 13 months' continuous employment immediately before termination has the right to complain of unfair termination under Section 45(3) of the Employment Act.
  • An employer alleging summary dismissal for gross misconduct bears the burden of proving the misconduct, and may be expected to call independent evidence of the employee's omissions.

Court orders

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  1. 1.Payment of one month salary in lieu of notice of Kshs. 50,000/= to the Claimant
  2. 2.Payment of 10 days salary for the month of August 2009 of Kshs. 19,230/= to the Claimant
  3. 3.Total award of Kshs. 69,230/= plus costs of the suit
  4. 4.Respondent to issue the Claimant with a Certificate of Service

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment Act 2007Section 45(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and employment remedies)

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, "Michael Muchui v Shemay Limited [2015] KEELRC 741 (KLR)", Case Analysis (2015). Cause No. 822 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/741/eng@2015-07-15

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