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ELRCPartially AllowedNot stated in the judgment· [2017] KEELRC 2004 (KLR)

Paul Kipkemoi Lelei v Laminate Tube Industries Limited [2017] KEELRC 2004 (KLR)

Employment and Labour Relations Court
24 November 2017
RSRadido Stephen
675 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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In an Employment and Labour Relations Court cause heard at Eldoret, the Claimant, Paul Kipkemoi Lelei, sued Laminate Tube Industries Ltd over the termination of his employment effective 1 November 2013. Although the parties framed nine issues, the Court condensed them into two: whether the termination was unfair and what remedies were appropriate. The termination letter cited a contractual provision allowing termination on one month's notice or pay in lieu, but the Respondent's HR Manager stated under cross-examination that the reason was performance. Applying sections 41, 43 and 45 of the Employment Act, 2007, the Court held that the statute had radically altered the common law position under which an employer could terminate on notice with or without reason. Where the real reason is misconduct, poor performance or incapacity, the employer must inform the employee and afford an opportunity to make representations. The Claimant received neither, so the termination was procedurally unfair and invalid. On remedies, the Court declined October 2013 wages, pay in lieu of notice and gratuity/service pay (the latter because the Claimant was an NSSF contributor and no contractual gratuity was proved). It awarded the November 2013 wage of Kshs 373/30 and maximum compensation of Kshs 134,748/- based on a gross wage of Kshs 11,229/- and about ten years' service, totalling Kshs 135,121/30. The Claimant also received costs on half scale. Judgment was delivered early due to the judge's transfer.

Key legal issues

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01

Whether the termination of the Claimant's employment was unfair

Holding

The termination was procedurally unfair and invalid because the employer failed to give the real reason (performance) and did not afford the Claimant an opportunity to make representations as required by sections 41, 43 and 45 of the Employment Act, 2007

Reasoning

The termination letter grounded dismissal on a contractual notice provision, but under cross-examination the Respondent's HR Manager stated the reason was performance. The Court held that sections 41, 43 and 45 of the Employment Act, 2007 displaced the common law freedom to terminate on notice without cause. Had performance been the true reason, the Claimant was entitled to be informed and heard; he was given neither, rendering the termination procedurally unfair and invalid.

p. 2
02

Appropriate compensation for unfair termination

Holding

Maximum compensation of twelve months' gross wages (Kshs 134,748/-) was appropriate given about 10 years of service

Reasoning

Considering the Claimant's length of service of about 10 years, the Court found the maximum compensation fair. Gross wage at separation was Kshs 11,229/-, yielding an award of Kshs 134,748/-. The Court also awarded the November 2013 wage of Kshs 373/30 but declined October 2013 wages, pay in lieu of notice and gratuity as already paid or not proved.

p. 2

Legal principles established

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  • Sections 41, 43 and 45 of the Employment Act, 2007 radically altered the common law position: an employer must give reasons for termination and afford the employee an opportunity to make representations
  • Termination of an employee without giving reasons or an opportunity to be heard is procedurally unfair and invalid

Court orders

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  1. 1.Respondent to pay Claimant November 2013 wage of Kshs 373/30
  2. 2.Respondent to pay compensation of Kshs 134,748/-
  3. 3.Total award of Kshs 135,121/30
  4. 4.Claimant to have costs on half scale
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment relationship); specific enabling article not cited in the judgment

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, "Paul Kipkemoi Lelei v Laminate Tube Industries Limited [2017] KEELRC 2004 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/2004/eng@2017-11-24

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