Michael Muchui v Shemay Limited [2015] KEELRC 741 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the summary dismissal for gross misconduct was justified
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.
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.
Whether the Claimant could complain of unfair termination
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.
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.
What remedies is the Claimant entitled to
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.
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.
Legal principles established
#- 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
#- 1.Payment of one month salary in lieu of notice of Kshs. 50,000/= to the Claimant
- 2.Payment of 10 days salary for the month of August 2009 of Kshs. 19,230/= to the Claimant
- 3.Total award of Kshs. 69,230/= plus costs of the suit
- 4.Respondent to issue the Claimant with a Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and employment remedies)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.