Peter Wakabu Wachie v Premier Bag & Cardage Limited [2016] KEELRC 1777 (KLR)
The bottom line
#A Kenyan court awarded an employee 12 months' salary because his employer could not produce a dismissal letter or prove a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons for the dismissal
No valid reasons were proved; there was no termination or dismissal letter, so the termination was deemed unfair under Section 43(1) and (2).
Despite the Respondent's averment that the Claimant refused to work and was dismissed for gross misconduct, no termination or dismissal letter was produced. The allegation of refusal to work should have been reduced to writing in the form of a dismissal letter. In the absence of such documentation, the Court preferred the Claimant's account that he was orally terminated without reasons, contrary to Section 43(1) and (2) of the Employment Act 2007, rendering the termination unfair within the meaning of Section 45.
Whether due process was followed before termination
Due process was not followed; the Claimant was never accorded a fair hearing as mandated by Section 41.
Section 41 of the Employment Act 2007 requires an employer to accord an employee a fair hearing before termination. The Court found this was never done. There was no evidence of any hearing or explanation given to the Claimant before his removal. Combined with the absence of a written dismissal letter and proved reasons, the termination failed both the substantive fairness test under Section 43 and the procedural fairness test under Section 41, and was therefore unjustified under Section 45(1) and (2).
What remedies the Claimant is entitled to
The Claimant was awarded one month's notice pay, 12 months' salary as damages for unlawful termination, salary for 4 days of July, leave for 2012, and a Certificate of Service; service pay was refused as he was an NSSF member.
Having found the termination unfair and unjustified under Section 45(1) and (2), the Court exercised its discretion to award remedies: notice pay of Kshs. 9,231; the equivalent of 12 months' gross salary as damages for unlawful termination; unpaid salary for 4 days worked in July 2012; and leave for 2012, totalling Kshs. 130,645. Because the Claimant was a member of NSSF since 1998, service pay was withheld. A Certificate of Service was ordered and costs were awarded to the Claimant.
Legal principles established
#- An employer must prove the reason or reasons for termination; failure to do so renders the termination unfair under Section 45.
- An employer must accord an employee a fair hearing before termination under Section 41 of the Employment Act.
Court orders
#- 1.1 month's salary in lieu of notice of Kshs. 9,231
- 2.12 months' salary as damages for unlawful termination (Kshs. 9,231 x 12 = 110,772)
- 3.Salary for 4 days of July (Kshs. 1,230.80)
- 4.Leave for 2012 (Kshs. 9,231)
- 5.Total award of Kshs. 130,645 with interest at court rates from the date of judgment
- 6.Claimant to be issued with a Certificate of Service
- 7.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (unfair termination claim under Sections 41, 43 and 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wakabu Wachie v Premier Bag & Cardage Limited [2016] KEELRC 1777 (KLR)", Case Analysis (2016). Cause No. 413 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1777/eng@2016-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.