Joachim Kimoja v Equator Bottlers Limited [2016] KEELRC 146 (KLR)
The bottom line
#Kenya's Employment Court ruled a Human Resource Manager's dismissal unfair because his employer gave no hearing and no valid reason, awarding six months' salary plus a withheld bonus.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair under section 41 of the Employment Act
The termination was procedurally unfair because the Claimant was not given a hearing
The Respondent produced no minutes of a disciplinary hearing or invitation to the Claimant to attend such a meeting, and the termination letter did not refer to any meeting or state the grounds of termination. Section 41 requires an employee to be given a hearing in the presence of a union official or fellow employee of his choice, which was not done.
Whether there was a valid reason for termination under sections 43 and 45
There was no valid reason; the Claimant was not responsible for obtaining work permits for the expatriate technicians
RW1, the Respondent's Human Resource Assistant, admitted in cross-examination that the Claimant was diligent, that he was unaware of the coming of the technicians from Italy, and that the Managing Director invited them without copying the letter to the Human Resource Department. The Claimant was therefore neither involved in the invitation nor in processing the work permits, so the reason was neither valid nor fair.
The appropriate compensation under section 49(1)(c) of the Employment Act
Six months' gross salary of Shs.1,844,552.94 was reasonable compensation
The Claimant worked for three years diligently with no disciplinary record, and was terminated without valid reason or fair procedure. The court considered the section 49(4) factors and the conduct of the employer, and fixed compensation at six months. Compensation under section 49(1)(c) is based on gross pay, computed from the January 2015 payslip showing a gross of Shs.307,521.
Whether the Claimant was entitled to the withheld performance bonus
The Claimant earned and was entitled to the performance bonus of Shs.42,336.00
RW1 admitted that all employees working under the Claimant were paid the performance bonus for September to December 2014, that the Claimant's name appeared in the printed payment list but was cancelled by hand, and that there was no explanation for the deletion nor anything to show the Claimant did not perform.
Legal principles established
#- An employer must prove both a valid reason and fair procedure, including a hearing under section 41 of the Employment Act, for a termination to be fair
- Compensation under section 49(1)(c) is calculated on gross pay and the court must consider the factors in section 49(4) before awarding a just remedy
- Where an employee's name is deleted from a performance bonus list without explanation, the employee is deemed to have earned the bonus
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair
- 2.Compensation of six months' salary at Shs.1,844,552.94 under section 49(1)(c) of the Employment Act
- 3.Payment of withheld performance bonus of Shs.42,336.00
- 4.Respondent to pay Claimant's costs of the suit
- 5.Decretal sum to attract interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; remedies under sections 41, 43, 45 and 49 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joachim Kimoja v Equator Bottlers Limited [2016] KEELRC 146 (KLR)", Case Analysis (2016). Cause No. 82 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/146/eng@2016-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.