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ELRCPartially AllowedCause No 862 of 2014· [2017] KEELRC 1766 (KLR)

Grace Otieno v Salaries and Remuneration Commission [2017] KEELRC 1766 (KLR)

Employment and Labour Relations Court
17 February 2017
ANAbuodha J. N.
2,286 words in judgment
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The bottom line

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Kenya's Employment Court ruled the SRC unfairly fired its Secretary because its show-cause letters never warned her that dismissal was possible.

What this practically means

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Executive summary

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The Claimant, formerly Secretary to the Salaries and Remuneration Commission, sued the Commission alleging that her summary dismissal by letter dated 19th March 2014 was hasty, without notice, unjustified and malicious, causing damage to her professional career and standing. She claimed notice pay, gratuity, salary for the unexpired contract term and compensation. The respondent maintained that it had raised performance concerns verbally and in writing, that the Claimant's written responses were unsatisfactory, and that the termination followed section 17(1)(c) of the SRC Act, relying on JSC v. Gladys Boss Shollei & Anor (2014 eKLR). The Court held that although section 17(2) of the SRC Act required an opportunity to defend, it did not prescribe the format; the Claimant's written responses without demand for an oral hearing satisfied that requirement, and her claim of not being heard was rejected. However, the two letters of 7th November 2013 did not caution or inform her that failure to respond satisfactorily could lead to termination, contrary to section 41(1) of the Employment Act, rendering the termination procedurally unfair. The Court awarded one month's salary in lieu of notice under section 35(1)(c), 38 days' leave pay, and six months' salary as compensation, totalling Kshs. 5,099,841, plus costs. Gratuity and salary for the remainder of the contract were disallowed for lack of proof, and the award was made subject to taxes and statutory deductions.

Key legal issues

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01

Whether written responses satisfy the opportunity to be heard under section 17(2) of the SRC Act

Holding

Yes; the Claimant's written responses to the allegations satisfied section 17(2), and her claim of not being heard was rejected

Reasoning

The SRC Act does not prescribe the format of the opportunity to defend. The Claimant responded in writing without demanding an oral hearing, and where parties adopt a mode of interaction without pressure, they are taken to be comfortable with it. Written responses therefore constitute a valid defence under section 17(2).

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02

Whether the termination procedure was fair under section 41(1) of the Employment Act

Holding

No; the letters of 7th November 2013 did not warn the Claimant that her services could be terminated, so the termination was procedurally unfair

Reasoning

Section 41(1) requires the employer to explain the reason for contemplated termination. The two letters merely asked the Claimant to address issues and report within a month without indicating that failure would result in termination. The termination was therefore carried out through an unfair procedure despite the written responses.

p. 4
03

Entitlement to notice pay, gratuity and salary for the unexpired contract term

Holding

One month's notice pay awarded under section 35(1)(c); gratuity and remainder-of-contract salary disallowed for lack of proof

Reasoning

No contract proving three months' notice or gratuity was produced; the remuneration schedule referenced in the appointment letter was not filed. Salary for the remainder of the contract failed because the contract was terminable and the Claimant returned to PSC.

p. 4

Legal principles established

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  • Opportunity to be heard under section 17(2) SRC Act and section 41 Employment Act may be satisfied by a written response; an oral hearing is not mandatory
  • A show-cause letter must unequivocally warn the employee that termination is contemplated, otherwise the termination is procedurally unfair

Court orders

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  1. 1.Judgment entered against the respondent for one month's salary in lieu of notice (Kshs. 715,600)
  2. 2.Kshs. 906,414 for 38 days of leave
  3. 3.Six months' salary as compensation for unfair termination (Kshs. 4,293,600)
  4. 4.Total award of Kshs. 5,099,841 plus costs of the suit
  5. 5.The award shall be subject to taxes and statutory deductions

Authorities

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Legislation

  • Salaries and Remuneration Commission Actsection 17(1) and 17(2)
  • Employment Actsection 41(1)
  • Employment Actsection 35(1)(c)

Cases cited (1)

  • JSC v. Gladys Boss Shollei & Anor
    2014 EKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and SRC Act (employment 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, "Grace Otieno v Salaries and Remuneration Commission [2017] KEELRC 1766 (KLR)", Case Analysis (2017). Cause No 862 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1766/eng@2017-02-17

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