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ELRCPartially AllowedCause No 237 of 2015· [2016] KEELRC 1401 (KLR)

George Kigudwa Mulwale v Beemart Laundry & Dry Cleaning Ltd [2016] KEELRC 1401 (KLR)

Employment and Labour Relations Court
15 April 2016
816 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 worker for asking about his unpaid salary was unfair and awarded him compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Presser from 1st May 2013 at a monthly salary of Kshs. 11,000, sued for unlawful termination and unpaid terminal dues following verbal termination without notice on 17th January 2015, which he said followed his inquiry about his unpaid December 2014 salary. The Respondent filed a notice of appearance but no defence, and the matter proceeded ex parte before Linnet Ndolo J on 10th February 2016. The Court framed two issues: the lawfulness of the termination and entitlement to remedies. Applying Sections 43, 45 and 41 of the Employment Act, 2007, the Court found the Respondent failed to demonstrate a valid reason for termination - inquiring about one's salary not being a ground for dismissal - and there was no evidence of compliance with the due procedure under Section 41. The termination was held both substantively and procedurally unfair. The Court awarded three months' salary as compensation, one month's notice pay, December 2014 salary, salary for 17 days worked in January 2015, leave pay (in the absence of leave records) and house allowance at 15% of basic pay, adopting Kshs. 12,650 as the monthly salary. Claims for off days, overtime, public holidays, underpayments and severance pay were dismissed as unproved or baseless. The total award of Kshs. 116,723 attracts interest at court rates from the date of the award until payment in full. The Claimant was also granted a certificate of service and costs of the case.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful

Holding

The termination was both substantively and procedurally unfair; the Respondent had no valid reason and did not follow Section 41 procedure.

Reasoning

The Claimant testified that his employment was terminated after he inquired about his unpaid December 2014 salary. The Respondent filed no defence and offered no evidence to counter this assertion. Inquiring about payment of one's salary is not a valid ground for termination, so no valid reason existed under Section 43. There was also no evidence of compliance with the procedural requirements of Section 41, rendering the termination unfair on both limbs.

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02

Whether the Claimant is entitled to the remedies sought

Holding

Partially: compensation of three months' salary, notice pay, December 2014 salary, 17 days' January 2015 salary, leave pay and house allowance awarded; off days, overtime, public holidays, underpayments and severance pay dismissed.

Reasoning

Following the finding of unfair termination, the Court awarded three months' salary as compensation considering length of service and the Respondent's conduct, plus one month's notice pay and accrued salary. In the absence of leave records to rebut the leave claim, leave pay was allowed. There being no evidence of payment of house allowance, the Court awarded 15% of basic pay for the employment period and adopted Kshs. 12,650 as the salary for purposes of the claim.

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Legal principles established

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  • Failure by an employer to demonstrate a valid reason for termination renders the termination unfair under Sections 43 and 45 of the Employment Act
  • An employer must observe the procedure set out under Section 41 of the Employment Act when terminating employment

Court orders

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  1. 1.Award of Kshs. 116,723 to the Claimant, comprising 3 months' salary in compensation for unfair termination (Kshs. 37,950), 1 month's salary in lieu of notice (Kshs. 12,650), salary for December 2014 (Kshs. 12,650), salary for 17 days worked in January 2015 (Kshs. 7,168), leave pay (Kshs. 14,020) and house allowance for 19 months and 17 days (Kshs. 32,285)
  2. 2.Claimant entitled to a certificate of service
  3. 3.Claimant entitled to costs of the case
  4. 4.Award to attract interest at court rates from the date of the award until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 31
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction 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, "George Kigudwa Mulwale v Beemart Laundry & Dry Cleaning Ltd [2016] KEELRC 1401 (KLR)", Case Analysis (2016). Cause No 237 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1401/eng@2016-04-15

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