Robert Ndurungi Chege v Samsutech Corportation Limited [2015] KEELRC 844 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing an employee by phone while on leave, without written notice, was unfair and awarded maximum compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal without notice was lawful
The dismissal without written notice was unlawful and an unfair labour practice.
Section 35 of the Employment Act requires written notice of termination for an employee who has served continuously. The claimant worked from 2005 to 2012 and was dismissed by a telephone call while on annual leave, with no written notice or reasons given. In the absence of any defence, the claimant's unchallenged evidence established the unfairness of the dismissal.
Entitlement to notice pay
One month's pay in lieu of notice awarded at the last salary rate of Kshs. 17,747.00, not the 3 months sought.
Although the claimant sought 3 months' notice pay, section 35 of the Employment Act provides for one month's pay in lieu of notice where none was issued. The court awarded the last salary actually paid and deposited to the claimant's bank account.
Whether severance pay was due
Severance pay declined as it is only payable on redundancy.
Severance pay under section 40 of the Employment Act is due in cases of redundancy. The claimant was dismissed while on leave, not declared redundant, and the registered dispute was unfair dismissal. The claim for severance pay therefore could not stand in the circumstances.
Salary arrears for August 2012
Awarded at Kshs. 17,747.00 as due and owing.
The claimant proceeded on leave on 17th August 2012 and was prevented from returning to work on 5th September 2012. Salary for August 2012 was never paid, and in the absence of any defence the court found it due and owing and awarded the equivalent of one month's salary.
Claims for 21 leave days
Declined for lack of proof.
The claimant took his annual leave from 17th August to 5th September 2012, having in prior years been paid in lieu of leave. He did not demonstrate how the 21 additional leave days arose or that there was a balance of leave days for the year in issue, and the burden was on him to do so.
Compensation for unfair dismissal
Maximum 12 months' compensation awarded, computed at Kshs. 212,964.00.
Having found the dismissal unjustified and amounting to an unfair labour practice, the court exercised its power to award the maximum compensation of 12 months' gross salary, computed on the claimant's monthly salary.
Legal principles established
#- Termination of employment without written notice as required under section 35 of the Employment Act is an unfair labour practice.
- Terminating an employee while on annual leave is a bad labour practice contrary to constitutional standards under Article 41 of the Constitution.
- A party absent at hearing despite being served is taken as not keen to be heard, and unrepresented absence of a corporate body is not excused by the illness of one officer.
Court orders
#- 1.Declaration that the claimant was unfairly dismissed from his employment with the respondent
- 2.Compensation of Kshs. 212,964.00 (12 months' maximum compensation)
- 3.Notice pay of Kshs. 17,747.00
- 4.Unpaid salary for August 2012 of Kshs. 17,747.00
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Section 3 of the Industrial Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Ndurungi Chege v Samsutech Corportation Limited [2015] KEELRC 844 (KLR)", Case Analysis (2015). Cause No. 1696 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/844/eng@2015-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.