Everlyne Malesi Lusasi v Metal Crowns Limited (Cause 1822 of 2013) (Employment and Labour) [2016] KEELRC 157 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination was for a valid reason
No valid reason; the claimant was not found in possession of any stolen food stuffs and the allegation in the termination letter was untrue
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.
Whether a fair procedure was followed under Section 41 of the Employment Act, 2007
No; the notice to show cause and letter of termination were issued on the same day, denying the claimant a disciplinary hearing
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.
What remedy is due for the unfair termination
Maximum compensation of twelve months' salary (Kshs.153,900) under Section 49(1)(c) as read with Section 49(4)
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.
Legal principles established
#- 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
#- 1.Kshs.153,900 compensation for unlawful and unfair termination (equivalent of twelve months' salary)
- 2.Interest at court rates from date of judgment till payment in full
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.