Edinah Nyaboke Gwachi v Kapric Apparels (EPZ) Limited [2016] KEELRC 272 (KLR)
The bottom line
#A Kenyan court awarded a dismissed worker pay for her full remaining contract because the employer, though right about the misconduct, skipped the required hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for termination were valid and fair
The employer proved valid and fair reasons - the claimant was found taking fabric from the factory, amounting to gross misconduct.
The court weighed the evidence of the defence eyewitness, Mr. Nguga, who saw the claimant intercepted with pieces of fabric sewn with overlock style. On a balance of probability this proved the offence of taking the fabric without permission. The claimant denied possession but failed to discharge the burden of showing the removal was lawful. The court held the reasons valid under sections 43, 44, 45 and 47(5) of the Employment Act.
Whether a fair procedure was followed before dismissal
The employer failed to prove a fair procedure; the termination was therefore procedurally unfair.
Although the HR Manager asserted that a meeting was convened to hear the claimant, no date, venue or attendants were stated. Section 41 requires an explanation of the reasons in a language the employee understands, in the presence of a union representative or fellow employee, and an opportunity to respond before dismissal. The burden of proving procedural fairness lies on the employer and was not discharged on a balance of probability.
Whether damages for the unexpired term of the fixed contract were payable
The claimant was awarded Kshs. 95,808, being salary for the 8 remaining months of the fixed term contract.
Having found the premature termination procedurally unfair, the court declared it unlawful and unfair and awarded compensation keyed to the claimant's reasonable expectation of earnings for the remainder of the fixed term contract. Because the full expected earnings were awarded, no separate payment in lieu of notice was granted.
Legal principles established
#- Under section 45 of the Employment Act, termination is unfair if the employer fails to prove both a valid and fair reason and a fair procedure.
- Under section 41 of the Employment Act, an employer must explain the reasons for intended dismissal to the employee in a language she understands, in the presence of a union representative or fellow employee, and accord her a hearing before dismissal.
- The burden of proving procedural fairness rests on the employer and must be discharged on a balance of probability.
Court orders
#- 1.Judgment entered for the Claimant in the sum of Kshs. 95,808 as compensation for unfair and premature termination
- 2.Claim for salary in lieu of notice refused
- 3.Claim for 50 days' outstanding leave dismissed
- 4.Costs and interest awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim; specific enabling provision not cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edinah Nyaboke Gwachi v Kapric Apparels (EPZ) Limited [2016] KEELRC 272 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/272/eng@2016-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.