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ELRCPartially AllowedCause No 1094 of 2012· [2018] KEELRC 270 (KLR)

Achola v Sokhi & another (Cause 1094 of 2012) [2018] KEELRC 270 (KLR)

Employment and Labour Relations Court (Industrial Court)
20 December 2018
1,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security guard's dismissal unfair because the employer could not prove valid reasons or give him a hearing, awarding nearly Kshs. 100,000.

What this practically means

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Executive summary

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The Claimant, a Security Guard employed from 12th May 1990 at a monthly salary of Kshs. 9,733.00, sued after his services were terminated in May 2012, pleading wrongful and unlawful termination and claiming Kshs. 2,599,154.40, comprising compensation for loss of employment, three months' pay in lieu of notice, severance pay for 23 years, substantial overtime claims, holiday pay and salary for March 2012. He alleged he was terminated while sick, without notice, hearing or terminal benefits. The 1st Respondent denied being the employer; the 2nd Respondent admitted employment but asserted lawful termination, contending the Claimant was dismissed after failing to respond to a show cause letter dated 2nd April 2012, and that he was compensated for overtime. RW1 admitted the show cause letter had no timeline for response, that client complaints were not produced in evidence, and that the Claimant never furnished medical documents. The court found the Respondent failed to prove service of the show cause letter, and the termination letter itself cited health grounds for which no evidence was adduced. Applying sections 41, 43 and 45(2) of the Employment Act, 2007, the court held the termination unfair for want of valid reasons and due process. The Claimant was awarded one month's salary in lieu of notice and nine months' salary as compensation, totalling Kshs. 97,330/=. Overtime and holiday pay claims failed as the payslips showed payment where arising. The Respondent was ordered to pay costs plus interest at court rate from the date of judgment.

Key legal issues

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01

Whether the Respondent proved valid reasons for terminating the Claimant's employment on health grounds

Holding

The Respondent failed to prove valid reasons; the termination letter indicated health grounds but no evidence established the Claimant's incapacity, so the termination was unfair under section 43

Reasoning

The termination letter dated 11/5/2012 cited poor health, yet the Respondent's evidence attributed the termination to failure to respond to a show cause letter. The show cause memo had no timelines, and the Claimant denied receipt, which the Respondent could not disprove. The Respondent produced no complaints from clients and no medical evidence. Section 43 places the burden of proving the reason for termination on the employer, and failure renders the termination unfair under section 45.

p. 4
02

Whether the Claimant was accorded fair procedure before termination

Holding

The Respondent failed to accord the Claimant any hearing before dismissal, breaching section 41 of the Employment Act

Reasoning

Section 41 requires an employer, before terminating on grounds including physical incapacity, to explain the reasons to the employee and to hear and consider representations. The Respondent exhibited a show cause memo dated 21/4/2012 without timelines, and failed to prove it was served on the Claimant, who denied receipt. No hearing was demonstrated. Combined with the absence of valid reasons, the termination was substantively and procedurally unfair under section 45(2).

p. 4
03

Entitlement to remedies for unfair termination

Holding

The Claimant was awarded one month's salary in lieu of notice and nine months' salary as compensation for unfair termination; claims for overtime and holiday pay failed as the payslips showed payment where due

Reasoning

Having found the termination unfair and unjustified under section 45(2), the court exercised its discretion on remedies, awarding notice pay of Kshs. 9,733/= and nine months' compensation totalling Kshs. 97,330/=. The claims for overtime, Sunday and public holiday pay were rejected because the exhibited payslips demonstrated the Claimant had been paid these where they arose.

p. 5

Legal principles established

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  • In any claim arising out of termination, the employer bears the burden of proving the reason(s) for termination; failure to do so renders the termination unfair under section 45
  • An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and hear and consider any representations

Court orders

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  1. 1.Payment of 1 month salary in lieu of notice of Kshs. 9,733/= to the Claimant
  2. 2.Payment of 9 months' salary as compensation for unfair termination, Kshs. 89,597/= (total award Kshs. 97,330/=)
  3. 3.The Respondent to pay costs of the suit plus interest at court rate with effect from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 40(1)(a), (b)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3) and (4)
  • Employment Act, 2007Section 45(2)
  • Labour Institutions Act, 2007Section 15(c)

Cases cited (1)

  • Tom Ndadema & Another Versus Club Click
    Industrial Court Cause Number 1591 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; Labour Institutions Act, 2007)

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, "Achola v Sokhi & another (Cause 1094 of 2012) [2018] KEELRC 270 (KLR)", Case Analysis (2018). Cause No 1094 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/270/eng@2018-12-20

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