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ELRCPartially AllowedCause No. 177 of 2013· [2018] KEELRC 239 (KLR)

Josephine Waithera Kiboi v Charleston Travel Limited [2018] KEELRC 239 (KLR)

Employment and Labour Relations Court
18 December 2018
HWHellen S. Wasilwa
977 words in judgment
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The bottom line

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A Kenyan court awarded an unfairly dismissed employee over Kshs. 826,000 because her employer had no documents proving why or how it fired her.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 23 March 2009 as a Manager at its JKIA office, sued for unlawful termination of employment and unpaid terminal dues totalling Kshs. 1,234,000, alleging she was summarily dismissed on 13 April 2012 without a hearing and on false allegations. The Respondent denied the claim, asserting the dismissal was for gross misconduct, insubordination, incitement of staff and related conduct, and that the Claimant refused to avail herself for a hearing or collect her termination benefits of Kshs. 77,995. Both parties adduced evidence; the Claimant testified that no letter directed her to report to the Westlands head office and that she handed the airport pass to KAA rather than the Respondent's staff. The court examined the dismissal letter, which cited insubordination and incitement, and found that no document proved the Claimant was required to report to Westlands, RW1 having conceded in cross-examination that she was not formally asked to do so. The reasons for dismissal were therefore not valid. On procedure, there was neither an invitation to a disciplinary hearing nor minutes of any hearing, so the Claimant was never subjected to a fair disciplinary process. Applying Section 45(2) of the Employment Act, 2007, the court held the dismissal unfair and unjustified. It awarded notice pay of Kshs. 77,000, Kshs. 30,800 for days worked in April, Kshs. 102,667 for forty days' leave, and Kshs. 616,000 being eight months' salary as compensation, totalling Kshs. 826,467, plus costs and interest at court rates from the date of judgment. The judgment was delivered on 18 December 2018 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Validity of the reasons for summary dismissal

Holding

The reasons (insubordination and incitement) were not valid because there was no documentary evidence the Claimant was asked to report to the head office

Reasoning

The dismissal letter cited insubordination for refusing to report to the Westlands head office and incitement of staff. However, RW1 conceded in cross-examination that no letter was written to the Claimant requiring her to report to Westlands, and no document exhibited proved such a direction. The alleged demand for the airport pass was explained, as the pass belonged to KAA. The evidential burden under Section 45(2) was therefore not discharged.

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02

Fairness of the procedure followed before dismissal

Holding

The Claimant was not subjected to a fair disciplinary hearing; the dismissal was procedurally unfair

Reasoning

The Respondent alleged the Claimant refused to attend a hearing at the head office, but produced no letter inviting her to any disciplinary hearing and no minutes of such a hearing. RW1 admitted the Claimant was not formally asked to go to Westlands. Procedural fairness requires proof that the employee was notified of allegations and given an opportunity to respond, which was absent here.

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03

Remedies for unfair termination

Holding

Claimant awarded notice pay, salary for days worked, leave pay and compensation equivalent to eight months' salary, plus costs and interest

Reasoning

Having found the dismissal unfair and unjustified, the court applied the remedies framework of the Employment Act, granting one month's notice pay, salary for days worked in April, admitted accrued leave of forty days, and compensation for unlawful dismissal calculated at eight months' salary, together with costs and interest at court rates from the date of judgment.

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Legal principles established

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  • Under Section 45(2) of the Employment Act, a termination is unfair if the employer fails to prove a valid and fair reason related to conduct, capacity or compatibility or based on operational requirements, and that fair procedure was followed
  • An employee must be accorded a fair disciplinary hearing before dismissal; absence of an invitation letter and minutes shows no hearing took place

Court orders

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  1. 1.Payment of 1 month's salary in lieu of notice of Kshs. 77,000
  2. 2.Payment of 12 days' salary for days worked in April, Kshs. 30,800
  3. 3.Payment of 40 days' leave, Kshs. 102,667
  4. 4.Payment of compensation for unlawful dismissal equivalent to 8 months' salary, Kshs. 616,000
  5. 5.Total award of Kshs. 826,467
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 45(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under Section 45)

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, "Josephine Waithera Kiboi v Charleston Travel Limited [2018] KEELRC 239 (KLR)", Case Analysis (2018). Cause No. 177 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/239/eng@2018-12-18

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