Pamela Achieng Onyoo v Surgipham Limited [2016] KEELRC 1369 (KLR)
The bottom line
#A Kenyan court ruled the dismissal unfair because the letter gave no reason, but the employee still walked away with nothing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly dismissed
Yes, on procedure - the dismissal letter did not state the reason for dismissal and the alleged vehicle-use policy was never produced in writing
The court held that section 35 requires notice of termination to state reasons, and the dismissal letter merely said the explanation was unsatisfactory without setting out the gross misconduct. The email directives on vehicle use did not amount to an employment policy under section 5(8)(c), and the Respondent failed to produce any written policy. Sending key policy directives to the employee while on leave appeared designed to set her up for dismissal.
Whether there were unauthorised salary deductions
No - all deductions were lawful
The tax on the company car benefit was properly chargeable per KRA regulations; an error in the vehicle registration number did not result in double taxation as the Claimant was only taxed for one vehicle. HELB loan, Co-operative loan, PAYE, NSSF and NHIF deductions were lawful and justified.
Whether the Claimant was discriminated against
No - the Claimant did not discharge her burden of proving discriminatory treatment
The Claimant received the same show cause letter as her colleagues, and failed to show how her explanations differed so as to distinguish her treatment. Non-allocation of work tasks such as the Mombasa trip was a managerial prerogative and not discriminatory absent unjustified grounds setting her apart.
What remedies flow from the finding of unfair dismissal
Reinstatement, compensation, lost earnings and service pay were all refused on the facts
Reinstatement was time-barred and unsuitable given the Claimant's conduct and demeanour over the lost vehicle. Compensation under section 45(5) is discretionary and her conduct justified assigning no amount. Service pay did not arise because NSSF and NHIF dues were deducted and remitted.
Legal principles established
#- A dismissal letter that fails to state the reason for dismissal fails to meet section 35 of the Employment Act and is of no legal consequence
- Employment policies and practices regulating terms and employment benefits must be in writing and brought to the attention of each employee
- Where no valid reasons are given or an employee is not taken through a fair process, the dismissal is unfair under section 45 of the Employment Act
- A claim for discrimination must be specifically articulated and is not an omnibus for all manner of claims
- All employment benefits including non-monetary benefits such as use of a company car are subject to tax deduction
Court orders
#- 1.Declaration that the Claimant's summary dismissal was procedurally unfair (dismissal letter failed to meet section 35 requirements of the Employment Act)
- 2.Claim for unauthorised salary deductions dismissed as the deductions were lawful
- 3.Claim for discrimination dismissed
- 4.Reinstatement not awarded
- 5.No compensation awarded for the unfair dismissal
- 6.Claim for loss of employment and lost earnings declined
- 7.Claim for service pay declined as NSSF and NHIF dues were deducted and remitted
- 8.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act and Article 41 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pamela Achieng Onyoo v Surgipham Limited [2016] KEELRC 1369 (KLR)", Case Analysis (2016). Cause No. 793 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1369/eng@2016-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.