David G. Warwathe & another v Kiambu Unity Finance Co-operative Union Limited [2015] KEELRC 793 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employer who gives a false reason for firing staff can be liable for unfair termination, even when proper notice was given.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the termination for alleged disloyalty
The termination was unfair and wrongful because the reason given (disloyalty) was untrue and unsupported by evidence
The termination letters cited disloyalty following a board decision of 26/10/04, but the minutes of that meeting did not address the terminations. Though not obliged to give reasons under clause 29(b) of the Staff Regulations and Section 16 of the repealed Employment Act, once the Respondent gave a reason it had to be valid; a false reason amounted to defamation of the Appellants' character and rendered the dismissal unfair.
Redundancy entitlement
Claim for redundancy payments failed for lack of evidence of redundancy
Although the Appellants pleaded they were terminated to avoid redundancy benefits during a restructuring, no evidence supported this assertion. The court therefore declined to award severance pay, confining itself to finding that termination occurred after due notice.
Provident fund dues
The Appellants were entitled to 100% employer contribution to the provident fund under clause 28 of the Terms and Conditions of Service
The Appellants had been paid only their own pension contributions and not the employer contribution. Having served for 15 and 12 years respectively, clause 28 of the Terms and Conditions of Service entitled them to full payment of employer contributions.
Legal principles established
#- Where an employer chooses to give reasons for termination, it is obliged to give valid reasons; reasons smacking of falsehood render the termination unfair and wrongful
- Under the repealed Employment Act and the applicable terms of service, termination on three months' notice or pay in lieu was lawful as to notice
Court orders
#- 1.The Appellants be paid employer contribution to the provident fund
- 2.1st Claimant to be paid 6 months salary (72,679 x 6 = 436,074/=) less statutory deductions
- 3.2nd Claimant to be paid 6 months salary (53,883 x 6 = 323,298/=) less statutory deductions
- 4.Respondents to meet costs of this appeal
- On appeal from
- Milimani Chief Magistrate's Court
- 3092/2006
- Jurisdiction invoked
- Transferred to this court by order of Hon. Justice R.E. Aburili on 17/2/2015 based on jurisdictional considerations (employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David G. Warwathe & another v Kiambu Unity Finance Co-operative Union Limited [2015] KEELRC 793 (KLR)", Case Analysis (2015). Civil Appeal No. 123 of 2009 (originally Milimani Chief Magistrate's Court Case No. 3092 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/793/eng@2015-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.