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ELRCPartially AllowedCause No 2281 of 2012· [2018] KEELRC 292 (KLR)

Rose M. Nteere v Riara Group of Schools Limited [2018] KEELRC 292 (KLR)

Employment and Labour Relations Court
20 December 2018
2,370 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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Rose M. Nteere was employed by Riara Group of Schools Limited as an Administrative Assistant from 13 November 2008 on a salary that rose to Kshs. 36,400. Following an incident on 18 November 2010 in which she failed to comply with her supervisor's instruction to assist at the main office, she was issued a termination notice dated 10 December 2010, with employment ending on 1 January 2011. She claimed notice pay, leave pay, house allowance, service gratuity, pension refund and 12 months' salary as compensation, alleging unlawful and unfair termination. The Court framed two issues: whether the termination was lawful and fair, and whether the remedies sought were due. Applying Sections 43 and 47(5) of the Employment Act, and following the Court of Appeal's adoption of the range of reasonable responses test in Reuben Ikatwa, the Court found a valid reason for termination since the Claimant admittedly disregarded a lawful instruction. However, the Respondent failed to meet the mandatory procedural requirements of Section 41: the Claimant was not heard in person and the Court could not tell whether her written explanation was considered. The disciplinary process was held to have been short-circuited. The Court also held that leave and notice pay are mutually exclusive and the Claimant could not lawfully be forced on leave during the notice period. Judgment was entered for the Claimant for 3 months' salary in compensation (Kshs. 109,200) and 21 days' leave pay (Kshs. 25,480), totaling Kshs. 134,680, with interest at court rates from the date of judgment. The notice, house allowance, gratuity and pension claims were dismissed. The Claimant received the costs of the case. Judgment dated and signed at Mombasa on 17 December 2018 by Linnet Ndolo J and delivered at Nairobi on 20 December 2018.

Key legal issues

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01

Whether there was a valid reason for the termination

Holding

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.

Reasoning

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.

p. 3
02

Whether procedural fairness under Section 41 of the Employment Act was observed

Holding

The Respondent failed to adhere to the mandatory requirements of Section 41; the disciplinary process was short-circuited without justifiable cause.

Reasoning

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.

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What remedies flow from the finding of unfair termination

Holding

Three months' salary as compensation for unfair termination, plus leave pay for 21 days; other heads of claim dismissed.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Judgment entered in favour of the Claimant for 3 months' salary in compensation for unfair termination, Kshs. 109,200
  2. 2.Leave pay for 21 days (36,400/30x21), Kshs. 25,480
  3. 3.Total award of Kshs. 134,680 with interest at court rates from the date of delivery of judgment until payment in full
  4. 4.Claimant awarded the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 44 (including 44(4)(e))
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 31(1) and (2)

Cases cited (1)

  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another
    [2017] eKLR
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

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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, "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.