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ELRCPartially AllowedCause No. 965 of 2014· [2016] KEELRC 1734 (KLR)

Juliet Oyando v Hipora Business Solutions (EA) Limited [2016] KEELRC 1734 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
5 February 2016
MNMathews N. Nduma
1,570 words in judgment
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The bottom line

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A Kenyan court awarded a former HR assistant Kshs 250,000 after her employer failed to prove why she was fired or give her a fair hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2012 and placed on a one-year fixed-term contract as Human Resource Assistant effective 16th January 2014 at a gross monthly salary of Kshs 25,000, had her employment terminated on 11th March 2014 on grounds including payroll errors, failure to file staff data, poor treatment of staff and insubordination. She claimed one month's salary in lieu of notice, nine months' salary for the unexpired term of the contract, maximum compensation for unlawful termination, and a certificate of service. The respondent, in its Memorandum of Response, justified the termination as gross misconduct under section 44(4)(a) and (c) of the Employment Act, 2007, and asserted that a fair hearing was accorded. The respondent did not attend the hearing on 27th July 2015 and the matter proceeded ex-parte, with only the claimant testifying. The court framed two issues: whether the termination was for a valid reason and by fair procedure, and what remedies were due. It found the respondent produced no minutes of any disciplinary hearing, the termination letter made no reference to disciplinary findings, and no evidence countered the claimant's version. Under section 43(1), the employer must prove the reasons for termination. The court held the claimant was given no notice to show cause or opportunity to explain, contrary to section 41, and that the termination was wrongful and unlawful under section 45. The court awarded Kshs 25,000 in lieu of notice and nine months' salary, Kshs 225,000, as compensation under section 49(1)(c) as read with section 49(4), totalling Kshs 250,000 with interest from filing. Claims for leave days, March days worked and overtime failed as unpleaded. The respondent was ordered to pay the costs of the suit. Judgment was delivered at Nairobi on 5th February 2016 by Mathews N. Nduma, Principal Judge.

Key legal issues

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01

Validity of reason for termination

Holding

The termination was not for a valid reason; the employer failed to prove the reasons under section 43(1) of the Employment Act

Reasoning

The respondent produced an email with alleged charges and invitations to disciplinary hearings but no minutes of any disciplinary hearing or findings. The termination letter did not refer to any disciplinary hearing or findings. The respondent did not attend the court hearing, so no evidence countered the claimant's version. Under section 43(1), the employer must prove the reasons for termination.

p. 3
02

Fairness of procedure

Holding

The termination was effected contrary to section 41; the claimant was not given notice to show cause nor taken before a disciplinary committee

Reasoning

The claimant established on a balance of probability that she was accused of acts without notice to show cause or opportunity to explain. She was not taken before a disciplinary committee. The respondent admitted it did not produce minutes of the intended disciplinary hearings and did not ask the claimant to show cause prior to the disciplinary hearing.

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03

Remedies for unlawful termination of a fixed-term contract

Holding

Nine months' salary compensation awarded under section 49(1)(c) as read with section 49(4), plus one month in lieu of notice

Reasoning

The claimant had nine months remaining on her fixed-term contract which was curtailed unlawfully. She wished to continue working but lost her means of income and career prospects. The respondent also failed to issue a certificate of service and to pay terminal benefits promised in the termination letter.

p. 3

Legal principles established

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  • In a termination claim, the employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair
  • An employee must be given notice to show cause and an opportunity to explain before termination under section 41 of the Employment Act

Court orders

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  1. 1.Kshs 25,000 in lieu of notice (1 month salary)
  2. 2.Kshs 225,000 compensation (9 months' salary) for unlawful and unfair termination under section 49(1)(c) as read with section 49(4) of the Employment Act, 2007
  3. 3.Total award of Kshs 250,000 payable with interest at court rates from date of filing suit till payment in full
  4. 4.Respondent to pay the costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 44
  • Employment Act, 2007section 44(4)(a) and (c)
  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 41
  • Employment Act, 2007section 37(5)
  • Employment Act, 2007section 49(1)(c) as read with section 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

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, "Juliet Oyando v Hipora Business Solutions (EA) Limited [2016] KEELRC 1734 (KLR)", Case Analysis (2016). Cause No. 965 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1734/eng@2016-02-05

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