Nahum Mbula Mukunzu v Brother Shirts Factory Limited [2016] KEELRC 1767 (KLR)
The bottom line
#A Kenyan court ruled an employee was unfairly sacked over a mild workplace comment, awarding back pay, house allowance and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to terminate the Claimant's services
There was no valid reason; the alleged abuse did not amount to misconduct warranting termination
The Respondent relied on an alleged verbal abuse of a supervisor. However, the person said to have been abused (RW2) testified that the Claimant only remarked that he was feeling very superior, which the court construed as a comment on pride rather than an abusive utterance. The comment arose from the supervisor taking the Claimant's table without asking. The court found such a remark could not constitute the gross misconduct contemplated under Section 44(4)(c) and (d) of the Employment Act, and therefore no valid reason existed.
Whether due process was followed in terminating the Claimant's services
Due process was not followed; no hearing was accorded as required by Section 41 of the Employment Act
Section 41 requires an employer, before terminating an employee for misconduct, to explain the reasons in a language the employee understands and to hear and consider any representations, with a fellow employee or union representative present. Although the Respondent asserted the Claimant was given an opportunity to apologise, no hearing as envisaged by the statute was held. The absence of a hearing, coupled with the absence of a valid reason, rendered the termination unfair and unjustified under Section 45(1) and (2).
Whether the Claimant was entitled to house allowance
House allowance was payable as the contract did not state the salary was inclusive of house rent
Section 31(1) and (2) of the Employment Act obliges an employer to provide reasonable housing accommodation or a cash allowance in lieu. The Respondent contended the consolidated monthly salary of Kshs.14,118 included house allowance, but the contract never provided that the amount paid was inclusive of house rent. The court therefore awarded house allowance at 15% of the monthly salary for 120 months of service, totaling Kshs.254,124.
Legal principles established
#- Under Section 47(5) of the Employment Act, the burden of justifying the reason for termination rests on the employer
- An employer must accord an employee a hearing under Section 41 of the Employment Act before terminating employment on grounds of misconduct
- A statement that a colleague was feeling very superior is not abusive language capable of justifying termination
Court orders
#- 1.1 month's salary in lieu of notice of Kshs.14,118
- 2.House allowance at 15% of monthly salary for 120 months, Kshs.254,124
- 3.12 months' salary as compensation for unlawful termination, Kshs.169,416 (total award Kshs.437,658 plus costs)
- 4.Certificate of Service to be issued to the Claimant
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over a claim for unfair termination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nahum Mbula Mukunzu v Brother Shirts Factory Limited [2016] KEELRC 1767 (KLR)", Case Analysis (2016). Cause No. 1746 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1767/eng@2016-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.