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ELRCPartially AllowedStatement of Claim filed 14th November 2013 (number not stated in judgment)· [2016] KEELRC 157 (KLR)

Everlyne Malesi Lusasi v Metal Crowns Limited (Cause 1822 of 2013) (Employment and Labour) [2016] KEELRC 157 (KLR)

Employment and Labour Relations Court
20 December 2016
1,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a kitchen attendant 12 months' salary after her employer fired her over theft suspicions without proof or a fair hearing.

What this practically means

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Executive summary

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The claimant, employed as a casual labourer from 2001 and confirmed as a kitchen attendant/tea lady by letter of appointment dated 25th September 2009, was terminated on 8th July 2013 on grounds that she was found with kitchen items at the gate. She sued for compensation for unlawful and unfair termination, having withdrawn the prayer for reinstatement during trial. The respondent's Human Resource Manager (RW1) admitted under cross examination that the claimant was not found in possession of any food stuffs on the material day; the items were recovered from a co-worker, Mr. Jackson, and the claimant was not mentioned in the occurrence book. The court held the termination was based on mere suspicion, hence without valid reason. It further found a breach of Section 41 of the Employment Act, 2007 because the notice to show cause and the letter of termination were both dated 8th July 2013, denying the claimant an opportunity to explain in a duly constituted disciplinary hearing. The termination was therefore unfair under Section 45(1) as read with 45(2)(a), (b) and (c). Considering her twelve years of service, the false accusation of theft, loss of livelihood, lack of contribution, and the respondent's aggravated failure to pay terminal benefits promptly, the court awarded maximum compensation of twelve months' salary (Kshs.153,900) under Section 49(1)(c) as read with Section 49(4), with interest at court rates from the date of judgment and costs of the suit. Terminal benefits had already been paid during the pendency of the suit.

Key legal issues

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01

Whether the termination was for a valid reason

Holding

No valid reason; the claimant was not found in possession of any stolen food stuffs and the allegation in the termination letter was untrue

Reasoning

RW1, under cross examination, admitted the claimant was not found with any food stuffs on the material day; the items were recovered from one Mr. Jackson, and the claimant was not mentioned in the occurrence book. The suspicion that the claimant was in cahoots with Jackson was mere suspicion, and the termination letter's assertion that she was found at the gate with kitchen items was simply not true.

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02

Whether a fair procedure was followed under Section 41 of the Employment Act, 2007

Holding

No; the notice to show cause and letter of termination were issued on the same day, denying the claimant a disciplinary hearing

Reasoning

The notice to show cause asked the claimant to cease carrying out duties until she explained the allegation, yet she received the termination letter the same day. She was not given opportunity to explain in a duly constituted disciplinary hearing in the presence of a colleague or union official as Section 41 requires.

p. 3
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What remedy is due for the unfair termination

Holding

Maximum compensation of twelve months' salary (Kshs.153,900) under Section 49(1)(c) as read with Section 49(4)

Reasoning

The claimant served over twelve years, was falsely accused of theft which injured her feelings and reputation, lost her livelihood without notice or hearing, did not contribute to the termination, and the termination was aggravated by the respondent's failure to pay terminal benefits until the suit was ongoing. These factors justified the maximum award.

p. 3

Legal principles established

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  • Termination of employment on the basis of mere suspicion, without proof that the employee was found in possession of the alleged stolen items, is not for a valid reason
  • An employer who issues a notice to show cause and a letter of termination on the same day denies the employee the opportunity to be heard as required under Section 41 of the Employment Act, 2007

Court orders

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  1. 1.Kshs.153,900 compensation for unlawful and unfair termination (equivalent of twelve months' salary)
  2. 2.Interest at court rates from date of judgment till payment in full
  3. 3.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 45 and 49 invoked)

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, "Everlyne Malesi Lusasi v Metal Crowns Limited (Cause 1822 of 2013)  (Employment and Labour) [2016] KEELRC 157 (KLR)", Case Analysis (2016). Statement of Claim filed 14th November 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/157/eng@2016-12-20

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