J M D v Nacico Sacco Society Limited [2016] KEELRC 1034 (KLR)
The bottom line
#A Kenyan court ruled an employee's fraud-based dismissal unfair because the employer had no written complaint, called no key witness, and skipped a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for dismissal
There were no valid or justifiable reasons for the termination
The charge was fraud in collecting money on behalf of a customer. The customer's complaint was verbal and no written complaint was produced; the customer was not called as a witness; the customer later wrote exonerating the claimant; and the respondent's own supervisory committee found she was not accorded a fair hearing. These factors considerably weakened the respondent's justification.
Fairness of the procedure
The process fell short of a fair hearing; the committee report indicated the staff were not accorded a fair hearing and the respondent failed to rebut it
Although the respondent asserted a show-cause letter and responses, the claimant's evidence and the supervisory committee report indicated no fair hearing. The respondent could have called a committee member to clarify but did not, and the exculpatory note from the customer was never contested.
Remedies for unfair termination
Notice pay of three months and compensation of ten months' salary
Having found the termination unfair, the court exercised its discretion under the Employment Act to award three months' salary in lieu of notice and ten months' salary as compensation, together with costs, with computation referred to the Deputy Registrar.
Legal principles established
#- Dismissal must be for valid and justifiable reasons and through fair procedure, failing which the dismissal is unfair
- The onus of justifying and proving reasons for dismissal rests with the employer while the burden of showing the dismissal was unfair is on the employee
Court orders
#- 1.Declaration that the termination of the claimant's employment was unfair
- 2.Payment of three months salary in lieu of notice
- 3.Ten months salary as compensation for unfair dismissal
- 4.Costs of the suit to the claimant
- 5.Parties to liaise with the Deputy Registrar for computation of the actual figure of the award
- Jurisdiction invoked
- Employment Act, 2007 (reference in the pleadings and submissions; no express constitutional provision invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J M D v Nacico Sacco Society Limited [2016] KEELRC 1034 (KLR)", Case Analysis (2016). Cause No 545 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1034/eng@2016-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.