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ELRCPartially AllowedCause No. 777 of 2014· [2015] KEELRC 796 (KLR)

Michael Edmunt Arochi & another v Memusi Academy [2015] KEELRC 796 (KLR)

Employment and Labour Relations Court
24 June 2015
1,816 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 ruled Memusi Academy unfairly fired two employees without valid reasons or a hearing, awarding them over Kshs. 520,000 plus costs.

What this practically means

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Executive summary

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Two claimants sued Memusi Academy for unlawful and unfair termination and non-payment of terminal benefits. The 1st Claimant, a teacher employed orally in 2010 at 13,000/= rising to 15,000/=, was terminated by letter on 21/3/2014 after he wrote complaining of unpaid house and transport allowances. The Respondent alleged seven forms of misconduct including absconding, insubordination and corruption. The 2nd Claimant, a cook employed in 2003 at 4,000/=, was terminated on 7/1/2014; the Respondent pleaded desertion, but its witness testified she was sent away for lacking a medical certificate. The court framed three issues: valid reasons, due process and entitlement to prayers. Applying Section 43 of the Employment Act, it held the Respondent proved no reasons for either termination, the 1st Claimant's alleged misconducts being speculative and contradicted by improved school results, and the 2nd Claimant's pleaded and testified reasons being contradictory. Applying Section 41, it found no hearing was accorded, rendering the terminations unfair and wrongful. On remedies, the 1st Claimant's underpayment claim failed but he was awarded 243,000/= comprising notice, service pay, house allowance and six months' compensation plus a certificate of service. The 2nd Claimant, underpaid against the minimum wage, was awarded 280,000/= on the same heads plus underpayment. The Respondent was ordered to pay costs of the suit.

Key legal issues

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01

Validity of reasons for termination of the 1st Claimant

Holding

No valid reasons were proved; the alleged misconducts were speculative and unsubstantiated

Reasoning

The Respondent alleged absconding, abusive language, insubordination, corruption, dishonesty and poor performance but adduced no evidence of these misdeeds. The 1st Claimant produced examination results showing improved performance. His woes began after his letter agitating for better pay, which the Respondent did not deny receiving. The court found the reasons speculative rather than real.

p. 3
02

Validity of reasons for termination of the 2nd Claimant

Holding

No valid reason was established; the Respondent's own evidence contradicted its defence

Reasoning

The Respondent pleaded desertion of duty, but RW1 testified in oral evidence that the 2nd Claimant was basically a cleaner who lacked a medical certificate and was sent away on that basis. These contradictory reasons meant no genuine reason for termination was proved.

p. 2
03

Procedural fairness (due process) before dismissal

Holding

The Claimants were not accorded any hearing, so their terminations were unfair and wrongful under Section 41 of the Employment Act

Reasoning

Section 41 requires an employer to explain the reasons for contemplated termination to the employee in a language the employee understands, allow an accompanying representative, and hear and consider representations. Nothing on the record showed any such process was followed for either Claimant.

p. 4
04

Entitlement to remedies

Holding

The 1st Claimant failed on underpayment but succeeded on notice, service pay, house allowance and 6 months' compensation; the 2nd Claimant, who was paid below the basic minimum wage, succeeded on underpayment and the other heads

Reasoning

There was no proof of underpayment for the 1st Claimant, who earned 15,000/= consolidated and cited no regulation entitling him to more. The 2nd Claimant was paid 4,000/= against the minimum wage of 9,500/= and was awarded the differential for 12 months, plus notice, service pay, house allowance and 6 months' compensation for each Claimant.

p. 4

Legal principles established

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  • Under Section 43 of the Employment Act, the employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair under Section 45
  • Reasons for termination must be genuine and real, not speculative, at the time of termination
  • Before termination on grounds of misconduct, poor performance or physical incapacity, an employer must explain the reasons to the employee and hear their representations as required by Section 41 of the Employment Act

Court orders

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  1. 1.1st Claimant awarded 1 month salary in lieu of notice of Kshs.15,000
  2. 2.1st Claimant awarded service pay of Kshs.30,000
  3. 3.1st Claimant awarded house allowance of Kshs.108,000
  4. 4.1st Claimant awarded 6 months' salary as compensation for unlawful termination of Kshs.90,000, totalling Kshs.243,000
  5. 5.1st Claimant to be issued a certificate of service
  6. 6.2nd Claimant awarded 1 month salary in lieu of notice of Kshs.9,500
  7. 7.2nd Claimant awarded underpayment based on the minimum wage of Kshs.66,000
  8. 8.2nd Claimant awarded service pay of Kshs.114,000
  9. 9.2nd Claimant awarded house allowance of Kshs.34,200
  10. 10.2nd Claimant awarded 6 months' compensation for unlawful termination of Kshs.57,000, totalling Kshs.280,000
  11. 11.2nd Claimant to be issued a certificate of service
  12. 12.Respondents to pay costs of this suit for both Claimants

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 45
  • Employment Act 2007Section 41
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court over claims of unlawful and unfair termination and terminal benefits

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 Edmunt Arochi & another v Memusi Academy [2015] KEELRC 796 (KLR)", Case Analysis (2015). Cause No. 777 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/796/eng@2015-06-24

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