Bernard Oumja Anyanga v Fast Eddie’s (K) Limited [2016] KEELRC 1727 (KLR)
The bottom line
#A Kenyan employer was ordered to pay over Kshs.1.1 million for firing an employee without a hearing, proving that skipping fair procedure is costly.
What this practically means
#Executive summary
#Key legal issues
#Valid reason for dismissal
The Respondent did not have a valid reason to dismiss the Claimant; the Claimant gave reasonable explanations exonerating him from the alleged misconduct, unrebutted by any defence evidence.
The Claimant's uncontroverted testimony denied each of the three charges - preferential discounts, taking Saturdays off, and being a shareholder of a competitor. He explained each charge candidly, including a standing arrangement for Saturdays approved by the Director. Section 37(5) of the Employment Act requires the employee to show the dismissal was wrongful, which the Court found discharged given his good track record and the Respondent's high turnover during his tenure. The Respondent failed to satisfy Sections 43 and 45.
Fair procedure
The dismissal breached Section 41 of the Employment Act because the Respondent revisited previously resolved issues without a show cause letter or disciplinary hearing.
The charges had been addressed and resolved at a disciplinary hearing culminating in the letter of 17th November 2011, under conditions for continued employment. When the Respondent later alleged non-compliance, it admitted it issued no show cause letter and afforded no disciplinary hearing. Terminating employment without that process violated Section 41, rendering the dismissal procedurally unfair under Section 45.
Remedies and counterclaim
Claimant awarded notice pay, leave, salary arrears, unpaid commission and ten months' compensation; counterclaim dismissed for want of proof.
Having served about nine years with good service and high sales turnover, and having lost his livelihood suddenly without terminal dues, the Claimant was awarded ten months' salary under Section 49(1)(c) read with Section 49(4), not the twelve sought. Gratuity was barred by NSSF registration. The counterclaim failed because the Respondent called no witness and the alleged losses were shown to have been recovered from commission or customers.
Legal principles established
#- An employer must follow fair procedure under Section 41 of the Employment Act before summarily dismissing an employee, even where the issues were previously the subject of a resolved disciplinary process
- Pleadings and attached documents do not constitute evidence unless submitted by consent or through a defence witness
Court orders
#- 1.Kshs.650,000.00 compensation for wrongful and unlawful summary dismissal
- 2.Kshs.65,000.00 in lieu of notice
- 3.Kshs.18,956.00 in lieu of leave
- 4.Kshs.27,080.00 arrear salary for April 2012
- 5.Kshs.39,000.00 salary arrears (13 months x 3,000)
- 6.Kshs.315,990.50 unpaid commission
- 7.Total award of Kshs.1,116,026.00 payable with interest at Court rates from date of filing suit till payment in full
- 8.Respondent to pay the cost of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Oumja Anyanga v Fast Eddie’s (K) Limited [2016] KEELRC 1727 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1727/eng@2016-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.