Jackline K.Muchiri v Everest Enterprises Limited [2015] KEELRC 944 (KLR)
The bottom line
#A Nyeri employment court ruled the dismissal unfair because the employer never produced the attendance register it relied on, awarding the employee Kshs. 80,500.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was unfair
The dismissal was unfair both for want of a genuine reason under section 43 and because the circumstances relied on were not valid reasons under section 46(h).
The dismissal letter alleged the claimant reported at 7.30AM and left at 8.15AM on 22.03.2012 per the gate register and could not be traced. The respondent's witness confirmed a register existed but never produced it. The court therefore accepted the claimant's account that she was locked out. The preceding compulsory leave stemmed from misleading instructions by the Farm Manager Robert, and the dispute between the claimant and her supervisor remained unresolved, which could not justify termination.
Whether the claimant was entitled to one month's pay in lieu of notice
Yes, Kshs. 11,500.00, since no termination notice was given.
The court found the claimant was not given a termination notice and therefore awarded one month's pay in lieu, being her last monthly salary of Kshs. 11,500.00.
Whether the claimant was entitled to pay for the unexpired term of the fixed term contract
Yes, Kshs. 57,500.00 for the 5 months unexpired term.
The claimant served on a renewable one-year contract running from 6.08.2011 to 5.08.2012 at a monthly salary of Kshs. 11,500.00. With about 5 months unexpired at termination, and no material on record to render the award unjustified, the court awarded the full unexpired term as due pay for breach of the fixed term contract.
Compensation for unfair termination under section 49(1)
One month's pay (Kshs. 11,500.00) awarded in addition to the unexpired-term pay.
Having found the dismissal unfair and having already awarded full pay for the unexpired term, the court considered that one month's pay for the unfair termination would meet the ends of justice under section 49(1) of the Act.
Legal principles established
#- An employer relying on an attendance register to justify summary dismissal must produce the register in evidence; failure to do so means the employer has not established a genuine reason for termination under section 43 of the Employment Act.
- An unresolved grievance or dispute between an employee and a supervisor cannot constitute a valid reason for termination under section 46(h) of the Employment Act.
- Breach of a fixed term contract entitles the employee to pay for the unexpired term of service.
Court orders
#- 1.A declaration that the summary dismissal of the claimant by the respondent from employment was unfair
- 2.The respondent to deliver to the claimant the certificate of service by close of 1.08.2015
- 3.The respondent to pay the claimant Kshs. 80,500.00 by 1.08.2015 failing which to pay interest at court rates from the date of judgment till full payment
- 4.The respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackline K.Muchiri v Everest Enterprises Limited [2015] KEELRC 944 (KLR)", Case Analysis (2015). Cause No 39 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/944/eng@2015-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.