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ELRCAllowedCause No. 1822 of 2011· [2015] KEELRC 804 (KLR)

Cyrus Nyongesa Simiyu v Concepts African Limited [2015] KEELRC 804 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
30 June 2015
HWHellen S. Wasilwa
1,314 words in judgment
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The bottom line

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A Kenyan court awarded an employee 12 months' salary because his employer could not prove why it fired him or show he was given a hearing.

What this practically means

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Executive summary

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The Claimant, employed on 20th November 2010 as a Medical/Sales Representative and terminated on 6th July 2011, sued for unfair termination, unpaid salary for May, June and part of July 2011, notice pay and leave pay. He asserted a monthly salary of 35,730 plus 20,000 travelling allowance, and that he was dismissed without justifiable cause, without disciplinary proceedings and without a hearing. The Respondent admitted employment but disputed the salary, relying on the appointment letter showing 20,000 plus 1% commission, and justified the dismissal on the Claimant's alleged failure to collect 1.8 million in outstanding dues, alleging embezzlement. The court framed three issues: valid reason, due process, and remedies. On the first, applying Section 43 of the Employment Act, it held the employer bore the burden of proving the reason for termination; the assertion that the Claimant failed to collect dues was unsupported by evidence of merchandise allocated and moneys uncollected, so no valid reason was proved. On due process, applying Section 41, the alleged notice of failures was not produced in court and the accusations were never put to the Claimant, breaching the principle that a man should not be condemned unheard, rendering the termination unfair under Section 45. The court adopted the May 2011 pay slip figure of 35,130 as basic pay and awarded one month's salary in lieu of notice (35,130), salary for May, June and 6 days of July 2011 (77,280), and 12 months' salary as compensation (421,560), totalling 533,970 less statutory deductions, a Certificate of Service, and costs of the suit to the Claimant.

Key legal issues

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01

Whether there were valid reasons to terminate the Claimant

Holding

No valid reason was proved; the allegation of failure to collect dues remained an unproven statement.

Reasoning

Section 43 of the Employment Act requires the employer to prove the reasons for termination. The Respondent merely asserted that the Claimant failed to collect outstanding dues for goods supplied without adducing evidence of the merchandise allocated to him, its cost, and the moneys actually collected. The Claimant denied the allegation and it remained word against word, so no valid reason was established.

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02

Whether due process was followed before dismissal

Holding

No hearing was accorded; the alleged notice was not produced and the termination was procedurally unfair.

Reasoning

Section 41 of the Employment Act obliges an employer, before terminating on grounds of misconduct or poor performance, to explain the reasons to the employee and hear any representations. The alleged notice of failures was not adduced in court; the only document exhibited was the termination letter. The accusations were never placed before the Claimant for him to answer, violating the rule audi alteram partem.

p. 3
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What remedies the Claimant is entitled to

Holding

The court declared the termination unfair and wrongful and awarded notice pay, accrued salary and 12 months' compensation.

Reasoning

Having found the termination unfair and wrongful, the court adopted the May 2011 pay slip figure of 35,130 as the basic pay, awarded one month's salary in lieu of notice, salary for May, June and 6 days of July 2011, the maximum 12 months' salary as compensation under Section 49, a Certificate of Service, and costs.

p. 3

Legal principles established

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  • In any claim arising out of termination of a contract, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair.
  • An employee must be given an opportunity to answer accusations before termination, per natural justice and Section 41 of the Employment Act.

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs 35,130
  2. 2.Pay for May, June and 6 days of July 2011 of Kshs 77,280
  3. 3.12 months' salary as compensation for wrongful termination of Kshs 421,560 (12 x 35,130)
  4. 4.Total award of Kshs 533,970 less statutory deductions
  5. 5.Claimant be issued with a Certificate of Service
  6. 6.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 43(1) and (2)
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 45(1), (2)(a), (b)(i), (b)(ii), (c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over unfair termination claim

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, "Cyrus Nyongesa Simiyu v Concepts African Limited [2015] KEELRC 804 (KLR)", Case Analysis (2015). Cause No. 1822 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/804/eng@2015-06-30

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