Paul Thuku Gachora v Naivas Company Ltd [2016] KEELRC 1268 (KLR)
The bottom line
#A Kenyan court ruled Naivas unfairly fired an employee without written notice or a hearing, awarding him Kshs 260,300 despite a pending criminal appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the adjournment sought by the Respondent was properly declined
The adjournment was properly declined; a pending criminal appeal is not a ground for adjourning an employment dispute, the Respondent had failed to attend Court without explanation on four occasions, and the criminal trial had concluded over a year earlier.
The Court reasoned that the pendency of a criminal appeal alone does not justify adjourning an employment cause. The subordinate-court criminal trial had concluded on 10 October 2014, and the Respondent's advocate had previously failed to attend Court on four occasions without explanation. Further, the thresholds of proof in criminal trials differ from those in unfair-termination disputes, so a conviction or acquittal is not decisive.
Whether the dismissal was procedurally fair
The dismissal was procedurally unfair because no written notice was issued and no hearing was afforded before dismissal for misconduct.
The Claimant testified he was dismissed on 21 January 2012 without notice or an opportunity to make representations, and this testimony was unchallenged. Section 35 requires written notice of termination while section 41 makes a hearing mandatory for terminations based on misconduct, poor performance or physical incapacity. The allegations here fell within misconduct, so the Respondent was bound to comply with these statutory requirements.
Whether the Court needed to determine substantive fairness
No; having found procedural unfairness, it was unnecessary to examine the validity of the reasons for dismissal.
The Court held that its conclusion on procedural fairness rendered examination of sections 43 and 45 (validity and fairness of reasons) unnecessary. This reflects the settled position that a breach of procedural fairness under sections 41 and 45(2) suffices to establish unfair termination without proof of substantive unfairness.
What remedies were appropriate
The Claimant was awarded one month's pay in lieu of notice (Kshs 32,300/- based on last proved basic wage), January 2012 wages (Kshs 38,000/-), and compensation equivalent to 5 months' gross wages (Kshs 190,000/-), but no service pay.
Pay in lieu of notice was assessed on the last proved basic wage under section 35(1)(c) read with the contract. January 2012 wages were earned and unchallenged. Considering about 4 years of service, 5 months' gross wages was deemed fair compensation. Service pay was denied because the Claimant contributed to the NSSF under section 35(5) and (6).
Legal principles established
#- The pendency of a criminal appeal is not by itself a ground for adjourning an employment dispute, and the standards of proof in criminal and unfair-termination proceedings differ.
- Under section 43 of the Employment Act, the reasons to be proved are those the employer genuinely believed to exist at the time of dismissal, on a balance of probabilities.
- Termination for misconduct requires written notice under section 35 and a mandatory hearing under section 41 of the Employment Act; absence of both renders the dismissal procedurally unfair.
Court orders
#- 1.Respondent to pay the Claimant 1 month pay in lieu of notice (Kshs 32,300/-)
- 2.Respondent to pay the Claimant January 2012 wages (Kshs 38,000/-)
- 3.Respondent to pay the Claimant 5 months wages compensation (Kshs 190,000/-)
- 4.Total award of Kshs 260,300/-
- 5.Claimant to have costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination of employment under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Thuku Gachora v Naivas Company Ltd [2016] KEELRC 1268 (KLR)", Case Analysis (2016). Cause No 229 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1268/eng@2016-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.