Rose M. Nteere v Riara Group of Schools Limited [2018] KEELRC 292 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid reason for the termination
The Respondent had a valid reason - the Claimant admittedly failed to obey a lawful instruction from her superior by not reporting to the main office.
Section 43 requires the employer to prove the reasons for termination. The Claimant received instructions to assist other Administrative Assistants at the main office but, by her own admission, did not comply, instead speaking to a colleague who said she could cope. The Court held the Claimant was not at liberty to vary instructions given by her superior, so the Respondent discharged its burden under Section 43.
Whether procedural fairness under Section 41 of the Employment Act was observed
The Respondent failed to adhere to the mandatory requirements of Section 41; the disciplinary process was short-circuited without justifiable cause.
Although the Claimant submitted a written explanation dated 4 December 2010, she was not afforded an opportunity to be heard in person prior to the termination. The Court could not tell whether her written representations were considered. The termination followed six days after the written response, with no hearing, breaching the mandatory procedural requirements of Section 41.
What remedies flow from the finding of unfair termination
Three months' salary as compensation for unfair termination, plus leave pay for 21 days; other heads of claim dismissed.
In assessing compensation the Court took into account the Claimant's length of service, the existence of a valid reason for the termination, and the Respondent's conduct in effecting the termination. The leave claim succeeded because the forcing of the Claimant on leave during the notice period was unlawful; notice, house allowance, gratuity and pension refund claims failed on the evidence.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer (Section 47(5), Employment Act).
- The employer's burden under Section 43 is to establish a valid reason that would cause a reasonable employer to terminate employment, applying the range of reasonable responses test.
- The Court does not substitute its own view for the employer's; it asks only whether the employer acted reasonably in the circumstances.
- Leave and notice pay are mutually exclusive rights and one cannot be traded for the other; an employer cannot lawfully force an employee to take leave during the notice period.
Court orders
#- 1.Judgment entered in favour of the Claimant for 3 months' salary in compensation for unfair termination, Kshs. 109,200
- 2.Leave pay for 21 days (36,400/30x21), Kshs. 25,480
- 3.Total award of Kshs. 134,680 with interest at court rates from the date of delivery of judgment until payment in full
- 4.Claimant awarded the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 31) - no constitutional provision stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose M. Nteere v Riara Group of Schools Limited [2018] KEELRC 292 (KLR)", Case Analysis (2018). Cause No 2281 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/292/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.