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ELRCPartially AllowedCause (not stated in the excerpt; Employment Cause filed 22 July 2013)· [2016] KEELRC 1250 (KLR)

Henry C. Langat v Naivas Company Ltd [2016] KEELRC 1250 (KLR)

Employment and Labour Relations Court
6 May 2016
RSRadido Stephen
1,549 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled Naivas acted unfairly by dismissing an employee without a hearing, even though it claimed it could not reach him.

What this practically means

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Executive summary

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The Claimant, a Manager employed by the Respondent since 2005, sued for unfair termination of employment, claiming Kshs 4,368,000/- comprising pay in lieu of notice, unpaid wages, compensation and service pay. He challenged only the procedural fairness of his summary dismissal, contending he was never given notice or a hearing, having been arrested while on leave after a newspaper notice, and verbally informed of dismissal by a director at the CID offices. The Respondent, through its Loss Control Manager, alleged the Claimant diverted goods (wheat and maize flour) causing a stock variance of about Kshs 36,000,000/-, and maintained he was dismissed by letter dated 20 February 2012 effective 1 February 2012. It conceded no disciplinary process was conducted, claiming it lacked the Claimant's contacts while he was on leave. The Court framed two issues: whether the summary dismissal was procedurally unfair, and the appropriate remedies. It held the Respondent had the Claimant's phone contact before his arrest, knew of his arraignment, and never attempted his declared postal address, and criticised the Respondent for not calling its Human Resources officer. The dismissal was therefore procedurally unfair; the reasons for dismissal were not contested and were not examined. Remedies: one month's pay in lieu of notice (Kshs 84,150/-), wages for January 2012 (Kshs 99,000/-) and compensation of six months' gross wages (Kshs 594,000/-), totalling Kshs 777,150/-. Service pay was refused as the Claimant contributed to NSSF and no contractual basis was shown. The Court also noted the Respondent's unprosecuted stay application filed in December 2013. The Claimant was awarded costs.

Key legal issues

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01

Procedural fairness of summary dismissal under section 41 of the Employment Act, 2007

Holding

The dismissal was procedurally unfair because the Respondent failed to accord the Claimant a hearing despite having means to reach him

Reasoning

Section 41 imposes peremptory requirements before dismissal. The Respondent claimed it could not conduct a disciplinary hearing because it lacked the Claimant's contacts. The Court found this an excuse: it had obtained his phone number before the arrest, knew of his arraignment, and never attempted his declared postal address. It also failed to call its Human Resources officer who would have spoken to attempts to reach him.

p. 3
02

Pay in lieu of notice under section 35(1)(c)

Holding

A monthly-paid employee dismissed without notice is entitled to one month's pay in lieu of notice

Reasoning

Under section 35(1)(c), a monthly-paid employee was entitled to at least 28 days written notice. None was given, and the Respondent failed the section 41 test, so notice pay was awarded.

p. 3
03

Entitlement to service pay

Holding

Service pay is excluded where the employee contributes to NSSF and no contractual basis for service pay is shown

Reasoning

The Claimant's December 2011 pay slip showed he contributed to the NSSF. Under sections 35(5) and (6) of the Employment Act he was not entitled to statutory service pay, and no contractual entitlement was demonstrated.

p. 3
04

Quantum of compensation for unfair termination

Holding

Six months' gross wages was fair compensation given about seven years of service and the circumstances of dismissal

Reasoning

The Claimant served from 2005 to 2012, about seven years. Considering length of service and the circumstances of dismissal, and without delving into the reasons for separation, the Court fixed compensation at the equivalent of six months' gross wages.

p. 3

Legal principles established

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  • An employer cannot be excused from complying with the peremptory requirements of section 41 of the Employment Act merely because it lacks an employee's contact details, where reasonable attempts to reach the employee were not made

Court orders

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  1. 1.Declaration that the summary dismissal of the Claimant was procedurally unfair
  2. 2.Respondent to pay 1 month pay in lieu of notice (Kshs 84,150/-)
  3. 3.Respondent to pay wages for January 2012 (Kshs 99,000/-)
  4. 4.Respondent to pay compensation equivalent of 6 months gross wages (Kshs 594,000/-)
  5. 5.Total award of Kshs 777,150/-
  6. 6.Claimant to have costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 35(5) and (6)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination of employment under the Employment Act, 2007

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, "Henry C. Langat v Naivas Company Ltd [2016] KEELRC 1250 (KLR)", Case Analysis (2016). Cause (not stated in the excerpt; Employment Cause filed 22 July 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1250/eng@2016-05-06

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