Joseph Amenya Masara v Aimco Enterprises Limited [2016] KEELRC 809 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was unfair
The termination was unfair and unjust because the respondent failed to prove a valid and fair reason and did not comply with the mandatory procedure under section 41 of the Employment Act
The claimant was dismissed by Director Mr. Ahmed for protesting against a unilateral reduction of his wages. The respondent did not allege participation in an illegal strike, its only witness was not present at the dismissal, and it did not prove that the Director complied with section 41, which requires explanation of the offence and an opportunity to make representations before dismissal. The burden under section 45(2) was therefore not discharged.
Whether the claimant was an employee or an independent contractor
The court proceeded on the undisputed footing that the claimant was employed by the respondent as a Supervisor from April 2010 to 12.9.2014; the defence assertion of independent contractor status and the later submission that he absconded were not accepted
There was no dispute that the claimant was employed as a Supervisor from April 2010 and was summarily dismissed on 12.9.2014. The defence witness's evidence that the claimant was an independent contractor who disappeared conflicted with the respondent's submissions that he was an employee who absconded, undermining the defence case.
What remedies flow from the finding of unfair termination
One month's salary in lieu of notice (kshs.24,000), service pay for 4 years (kshs.48,000), 3 months' salary as compensation (kshs.72,000) and a certificate of service were granted; accrued leave, Sundays worked and overtime were refused for want of proof
Section 49(1) entitled the claimant to notice pay, and the respondent did not disprove the daily wage of kshs.800. Service pay at 15 days' salary per year for 4 years mirrored a prior Labour officer's award. Compensation of 3 months' salary reflected 4 years of service and the unlikelihood of securing alternative employment within 3 months. A certificate of service is a statutory right under section 51.
Legal principles established
#- Under section 45(2) of the Employment Act, termination is unfair if the employer fails to prove a valid and fair reason and a fair procedure; the burden of proof lies on the employer
- Compliance with the mandatory procedure in section 41 of the Employment Act (explanation and hearing before dismissal for gross misconduct) is required before summary dismissal
- An unfairly dismissed employee is entitled to salary in lieu of notice under section 49(1) of the Employment Act
- A certificate of service is a statutory right under section 51 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant in the sum of kshs.144,000.00
- 2.Costs of the suit to the claimant
- 3.Interest on the decretal sum
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Amenya Masara v Aimco Enterprises Limited [2016] KEELRC 809 (KLR)", Case Analysis (2016). Cause No 456 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/809/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.