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ELRCPartially AllowedCause No 240 of 2013· [2015] KEELRC 1113 (KLR)

Dorothy Asina Atela v Henkel Chemical (EA) Limited [2015] KEELRC 1113 (KLR)

Employment and Labour Relations Court
6 May 2015
2,273 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 an employee was wrongfully dismissed because her employer never gave her a proper chance to be heard, awarding her Kshs.310,000.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as an Accounts Assistant from 2007, was summarily dismissed on 7th February 2013 for gross misconduct arising from a noisy workplace altercation, hanging up on the Human Resources Manager and a two-and-a-half-day absence. She sued for a declaration of unlawful termination, breach of contract compensation, underpayment, unpaid house allowance, notice pay, February salary and leave pay. The Court framed four issues: her salary at dismissal, the validity of the reason for dismissal, procedural fairness, and remedies. It held the salary ought to have been Kshs.60,000 from 6th December 2012, based on Mrs. Henkel's written approval of an increment, uncontradicted by the Respondent. On validity, applying the Maitha decision, the Court found the Claimant's refusal to sign the joint warning letter was a fresh offence giving the Respondent a valid reason for termination. However, the dismissal was procedurally unfair: being confronted at the sidelines of a regular management meeting failed the Section 41 fairness test, the employee not having been properly heard. The Court awarded three months' salary as compensation, one month's notice pay, underpayment for two months, 15 days' leave pay and 7 days' February salary, totalling Kshs.310,000. The house allowance claim failed because the parties intended a gross salary inclusive of housing. The Respondent was ordered to pay costs, with interest on the award at court rates from the date of the award until payment in full.

Key legal issues

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01

The Claimant's correct salary at dismissal

Holding

The Court found the monthly salary ought to have been Kshs.60,000 effective 6th December 2012, based on Mrs. Henkel's written approval of the salary increment, the Respondent having produced no evidence of objection

Reasoning

The Claimant's December 2012 letter requesting a salary increment to a gross of Kshs.60,000 bore a handwritten approval by Mrs. Henkel. The Respondent's HR Manual required annual reviews, but the Court held that the failure to formalise the increment could not be held against the Claimant since no evidence of objection to the recommendation was produced.

p. 3
02

Whether the Respondent had a valid reason for summary dismissal

Holding

Yes - the Claimant's refusal to sign the joint warning letter of 31st January 2013 constituted a new offence justifying termination

Reasoning

The dismissal letter showed the termination was triggered by refusal to sign the warning letter. Applying the Maitha decision, refusal to sign a warning letter is a fresh offence. The Respondent testified the Claimant refused to sign, and in the absence of contrary evidence the Court found a valid reason existed under Section 43.

p. 4
03

Whether the dismissal procedure was fair

Holding

No - the dismissal was procedurally unfair

Reasoning

Under Section 41 of the Employment Act, the employer must explain reasons in a language the employee understands, allow a representative, hear explanations and follow internal disciplinary rules. The Claimant was confronted at a regular management meeting on the sidelines, which the Court held did not meet the procedural fairness threshold; the resulting termination was procedurally unfair.

p. 4
04

Remedies for unfair termination

Holding

Three months' salary compensation, one month's notice pay, underpayment for two months, 15 days' leave pay and 7 days' February salary were awarded; house allowance claim dismissed

Reasoning

Compensation of three months' salary factored in the Claimant's length of service, her employment record including refusal to sign the warning, and the Respondent's conduct. The underpayment claim succeeded only for the period 6th December 2012 to 7th February 2013. Leave pay and salary for days worked succeeded on the absence of contrary evidence; house allowance failed as the salary was gross and inclusive of housing.

p. 5

Legal principles established

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  • Section 43 of the Employment Act requires an employer to demonstrate a valid reason for termination, whether normal termination or summary dismissal
  • Once a disciplinary action such as a warning is concluded, the underlying offence cannot found future discipline; but refusal to sign a warning letter is a new offence attracting further disciplinary action
  • An employee facing a disciplinary process must be specifically notified that it is a disciplinary process; discussion on the sidelines of a regular management meeting does not satisfy Section 41 procedural fairness

Court orders

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  1. 1.3 months' salary in compensation for unfair termination - Kshs.180,000.00
  2. 2.1 month's salary in lieu of notice - Kshs.60,000.00
  3. 3.Salary underpayment for 2 months @ Kshs.13,000.00 - Kshs.26,000.00
  4. 4.15 days' leave pay - Kshs.30,000.00
  5. 5.Salary for 7 days worked in February 2013 - Kshs.14,000.00
  6. 6.Total award of Kshs.310,000.00 in favour of the Claimant
  7. 7.Respondent to meet the costs of the case
  8. 8.Award to attract interest at court rates from the date of the award until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)(d) & (e)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 31(1) and (2)

Cases cited (2)

  • Dr. Joseph Maingi Maitha Vs Permanent Secretary Ministry of Medical Services and Another
    [2015] eKLR
  • Nazareno Kariuki Vs Feed the Children Kenya
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

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, "Dorothy Asina Atela v Henkel Chemical (EA) Limited [2015] KEELRC 1113 (KLR)", Case Analysis (2015). Cause No 240 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1113/eng@2015-05-06

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