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ELRCPartially AllowedStatement of Claim filed 25th September, 2013 (number not stated in judgment)· [2016] KEELRC 1517 (KLR)

Catherine Rotich Holden v Board of Governors,Nairobi International School & another [2016] KEELRC 1517 (KLR)

Employment and Labour Relations Court
18 March 2016
3,758 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a school employee 12 months' salary after finding her dismissal while on honeymoon had no valid reason and followed no fair procedure.

What this practically means

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Executive summary

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The Claimant, formerly Human Resource Manager and Student Counsellor at Nairobi International School, sued the School and its Operations Manager (a long-standing friend who regarded her as a daughter) for unlawful and unfair termination. She was recruited from a post in London with incentives including freight charges and an interest-free loan, and her employment was terminated by letter dated 29th July 2013 while she was on annual leave and honeymoon following her wedding, on the stated ground that the institution no longer required a Human Resource Manager. The Respondents denied a fixed 34-month term, alleged embarrassment caused by her undisclosed deejaying, and counterclaimed for the loan balance and relocation freight charges. The court framed three issues: validity of the reason and fairness of procedure, the reliefs owed, and the counterclaim. It found the Claimant's work record was good with no adverse record, that the Respondents knew of her music and DJ activities before hiring her and had engaged her to perform at school events, and that the termination was actuated by extraneous matters unrelated to her work - principally the 2nd Respondent's displeasure over the Claimant's son's involvement in her wedding. No warning, notice to show cause or disciplinary hearing preceded the termination. Applying Sections 43, 45 and 49 of the Employment Act, the court found the termination substantively and procedurally unfair, awarded 12 months' salary (Kshs.2,400,000) as compensation plus one month's salary in lieu of notice, totaling Kshs.2,600,000 against both Respondents jointly and severally. On the counterclaim, the loan balance of Kshs.614,156 and 50% of the freight charges (Kshs.316,378.28) were awarded, set off against the Claimant's award, leaving a net Kshs.1,669,465.72 payable to the Claimant within 30 days, with interest and costs, and a certificate of service to issue within 30 days.

Key legal issues

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01

Validity of the reason for termination

Holding

The Respondents failed to prove a valid reason related to the Claimant's conduct, capacity or compatibility; the real reason was extraneous (the 2nd Respondent's displeasure over the Claimant's friendship with her son and her deejaying, of which the Respondents had prior knowledge)

Reasoning

The 2nd Respondent admitted the Claimant's work performance was good with no adverse record. The termination letter cited redundancy of the HR Manager role but said nothing of the Student Counsellor role. The court found the Respondents knew of the Claimant's music/DJ activities before employment and had even engaged her to perform at school events. The purported redundancy was a euphemism concealing personal grievances, making the termination substantively unfair.

p. 6
02

Procedural fairness of the termination

Holding

The termination was procedurally unfair - no warning, notice, notice to show cause or disciplinary hearing was given, and it was effected while the Claimant was on annual leave and honeymoon

Reasoning

The Claimant was not formally questioned about the alleged embarrassing conduct, was not warned to desist from deejaying, and faced no disciplinary action. The letter of termination was handed to her on return from honeymoon with immediate effect, her IT access disabled, and she was required to leave immediately without being permitted to retrieve personal belongings or receive a certificate of service.

p. 5
03

Quantum of compensation for unfair termination

Holding

Maximum compensation of 12 months' salary under Section 49(1)(c) read with Section 49(4) was awarded, plus one month's salary in lieu of notice

Reasoning

The court took into account the Claimant's excellent performance, absence of any contribution to the termination, the callous timing during leave and honeymoon, the major personal commitment in relocating from London, and the humiliating manner of exit including loss of access to personal property and lack of a certificate of service.

p. 6
04

The counterclaim for loan balance and relocation freight charges

Holding

The outstanding loan of Kshs.614,156 was awarded in full; only 50% of the freight charges (Kshs.316,378.28) was awarded since the parties had agreed to share the costs

Reasoning

The Claimant admitted the loan balance. On freight charges, the court noted employers ordinarily meet relocation costs for employees relocating internationally for employment and such matters ought to be in the contract, but since the Claimant admitted an agreement to share costs 50/50, only half was recoverable.

p. 7

Legal principles established

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  • In a claim arising out of termination of a contract, the employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair
  • A termination is unfair where the employer fails to prove a valid and fair reason related to conduct, capacity or compatibility and that fair procedure was followed
  • Termination actuated by extraneous matters unrelated to the employee's work is unfair

Court orders

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  1. 1.Award to the Claimant of 12 months' salary as compensation for unlawful and unfair termination (Kshs.2,400,000)
  2. 2.One month's salary in lieu of notice awarded (Kshs.200,000)
  3. 3.Award to the Respondents on counterclaim of Kshs.614,156 outstanding loan balance
  4. 4.Award to the Respondents of 50% of freight charges, Kshs.316,378.28
  5. 5.Counterclaim amounts set off against the Claimant's award leaving a net of Kshs.1,669,465.72 payable to the Claimant within 30 days
  6. 6.Interest on the award to the Claimant at court rates from date of filing suit until payment in full
  7. 7.Respondents to pay the costs of the suit
  8. 8.Respondents to provide a certificate of service to the Claimant within 30 days from the date of judgment

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 45(1) and 45(2)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c) and 49(4)
  • ILO Termination of Employment Convention No. 158 of 1980Article 14
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment and labour relations dispute)

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, "Catherine Rotich Holden v Board of Governors,Nairobi International School & another [2016] KEELRC 1517 (KLR)", Case Analysis (2016). Statement of Claim filed 25th September, 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1517/eng@2016-03-18

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