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ELRCPartially AllowedCause No 463 of 2012· [2016] KEELRC 968 (KLR)

Jane Wambui v Joseph GathirwaT/A Muga Auctioneers [2016] KEELRC 968 (KLR)

Employment and Labour Relations Court
8 July 2016
1,115 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing a secretary for asking for a pay rise was unfair, awarding her Kshs. 271,333 in compensation and related dues.

What this practically means

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Executive summary

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The Claimant, Jane Wambui, sued the Respondent, Joseph Gathirwa trading as Muga Auctioneers, for unlawful termination of employment. She claimed she was employed as an Office Secretary in two stints (1996-2000 and 2002-14th December 2011) and that after she wrote on 14th September 2011 requesting a salary increment, the Respondent told her her position had been rendered redundant, terminating her employment on 14th December 2011. She sought twelve months' compensation, notice pay, leave pay, severance pay, underpayment and a certificate of service. The Respondent admitted the two employment periods but asserted she was a general hand, that she herself gave notice of unwillingness to continue working, and that she was paid Kshs. 27,000 in full and final settlement, having earlier declined Kshs. 28,309 offered at conciliation by the District Labour Office. The Court framed two issues: whether the termination was lawful and fair, and whether the remedies sought were payable. Relying on an unchallenged recommendation letter showing secretarial duties and the absence of any contrary document, the Court found the Claimant was a Secretary. It held the termination followed her increment request, an invalid reason, and that with no disciplinary process it was both substantively and procedurally unfair. Using the Regulation of Wages (General) Amendment Order, 2011 with 15% house allowance loading, the Court fixed her salary at Kshs. 13,437 and awarded 9 months' compensation, notice pay, underpayment from 1st May 2011, three years' leave pay in the absence of leave records, and nine years' service pay as the Claimant was not in a pension scheme, totalling Kshs. 271,333, plus a certificate of service, costs and interest from the date of the award.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

Termination was both substantively and procedurally unfair; it followed the Claimant's salary increment request and no disciplinary process was conducted

Reasoning

The common ground between the parties was a salary dispute. The Claimant produced an unchallenged recommendation letter showing she held secretarial responsibilities, while the Respondent produced no document showing she was a general hand. The Court adopted her evidence on position, found the termination followed her request for an increment, which is an invalid reason, and noted there was no evidence of any disciplinary process.

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02

Whether the Claimant was employed as a Secretary or a general hand

Holding

The Court adopted the Claimant's evidence that she was employed as a Secretary and rejected the Respondent's defence

Reasoning

The Claimant produced a recommendation letter dated 30th July 2000 in which the Respondent described her as employed in Secretarial responsibilities. The Respondent did not challenge its authenticity and produced no document supporting its assertion that she was a general hand. The Court therefore preferred the Claimant's documentary evidence over the Respondent's bare denial.

p. 2
03

Whether the Claimant was entitled to the remedies sought

Holding

Most remedies allowed but recomputed; 9 months' compensation instead of 12, notice pay allowed, underpayment allowed from 1st May 2011, leave pay and service pay allowed

Reasoning

The Court used the Regulation of Wages (General) Amendment Order, 2011 minimum wage for secretarial positions, loaded 15% house allowance to reach Kshs. 13,437 as the correct salary. It awarded 9 months' compensation considering length of service and the Respondent's conduct, one month's notice pay, underpayment for the period from 1st May 2011, leave pay for 3 years given the absence of leave records, and service pay for 9 years since the Respondent admitted the Claimant was not in a pension scheme.

p. 3

Legal principles established

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  • Termination in response to an employee's request for a salary increment is for an invalid reason and is substantively unfair; termination without any disciplinary process is procedurally unfair
  • In the absence of leave records proving that leave was taken, a claim for leave pay succeeds
  • The employer bears the consequence of failing to produce documents establishing the employee's position; unchallenged documentary evidence on the employee's designation is adopted by the Court

Court orders

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  1. 1.9 months' salary in compensation for unfair termination (Kshs. 120,933)
  2. 2.1 month's salary in lieu of notice (Kshs. 13,437)
  3. 3.Underpayment from 1st May to 14th December 2011 (Kshs. 48,278)
  4. 4.Leave pay for 3 years (Kshs. 28,218)
  5. 5.Service pay for 9 years (Kshs. 60,467)
  6. 6.Total award of Kshs. 271,333
  7. 7.Respondent directed to issue the Claimant with a certificate of service
  8. 8.Claimant awarded costs of the case
  9. 9.Award to attract interest at court rates from date of award until payment in full

Authorities

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Legislation

  • Regulation of Wages (General) Amendment Order2011 Order - minimum wage for secretarial positions
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unlawful termination of employment claim

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, "Jane Wambui v Joseph GathirwaT/A Muga Auctioneers [2016] KEELRC 968 (KLR)", Case Analysis (2016). Cause No 463 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/968/eng@2016-07-08

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