Mary M Mwangi v Sofia Mangina t/a Athens Leather Products [2017] KEELRC 1962 (KLR)
The bottom line
#A Kenyan employer who never gave its worker a written contract or formal dismissal letter was ordered to pay over Kshs.275,000 for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was terminated or absconded duty
The court found termination resulting from the employer's conduct - the claimant was directed to leave the shop and never recalled, so in her mind she was terminated without notice or reason.
The respondent alleged the claimant absconded, but there was no written communication, warning, reprimand or letter recalling her to work. The verbal direction to 'leave the shop and go away' was taken by the claimant as termination. The absence of any written rules or contract made attendance obligations unenforceable, so the failure to formally terminate was at the employer's expense.
Whether the termination was unfair
The termination was unfair because the respondent failed to comply with sections 10, 35, 43 and 45 of the Employment Act - no written contract, no notice, and no proof of reasons for termination.
The employer bore the burden of justifying the termination but issued no written communication in the entire course of employment. Section 43 deems termination unfair where the employer fails to prove reasons. The failure to issue a written contract of service was a fatal mistake applied to the employer's disadvantage and the employee's advantage.
Remedies: notice pay, leave, service pay, house allowance, compensation and salary arrears
Notice pay, two years' leave (full for 2012, 6 days for 2013), service pay for 6 years and house allowance at 15% awarded; compensation and salary arrears refused.
Compensation was discretionary and refused given the claimant's irregular attendance. Notice pay followed section 35. Without leave records, leave for 2012 was paid in full and 6 days for 2013. Service pay was due absent NSSF/NHIF records. House allowance was awarded at 15% of salary absent any provision for housing. Salary arrears were rebutted by payment records.
Legal principles established
#- The employer is under a mandatory statutory duty to issue a written contract of service with particulars of employment within two months of the commencement of employment; failure to do so is at the employer's expense.
- In a claim arising out of termination, the employer must prove the reasons for termination; failure to do so renders the termination unfair under section 45 of the Employment Act.
- Where an employee is deemed to have absconded, the employer must still act in accordance with the law by formally terminating employment or issuing summary dismissal; failure to issue written notice, reprimand or summons to work results in unfair termination.
- Where there is no record of annual leave, leave accrues to the employee; where there is no record of statutory deductions and remittances (NSSF/NHIF), service pay is due based on years served and last salary.
Court orders
#- 1.Notice pay of Kshs.15,500.00
- 2.Leave days due of Kshs.18,600.00
- 3.House allowance of Kshs.195,300.00
- 4.Service pay of Kshs.46,000.00
- 5.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; complaint of unfair termination under section 47(3))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary M Mwangi v Sofia Mangina t/a Athens Leather Products [2017] KEELRC 1962 (KLR)", Case Analysis (2017). Cause No. 1254 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1962/eng@2017-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.