Silah Kiprop Koech v Advanced Innovations Limited [2018] KEELRC 548 (KLR)

Section 35 of the Employment Act required the Respondent to issue a written notice of termination, and section 41 contemplated a hearing before dismissal. The Claimant testified he was only asked for verbal explanations over the slot machine tampering allegation, was suspended and later handed a dismissal letter without notice or an opportunity to make representations. The Respondent did not appear at the hearing to controvert this testimony or lead evidence of compliance. Absent evidence of compliance with sections 35 and 41, the Claimant discharged the threshold under section 47(5).

Sections 43, 45 and 47(5) of the Employment Act impose on the employer the burden of proving the reasons for termination and that the reasons were fair and valid. The Respondent and its advocate were absent at the hearing despite service of a hearing notice, and therefore led no evidence to justify the dismissal on the alleged tampering with a slot machine. With no evidence from the employer, the Court concluded there was no substantive fairness in the dismissal of the Claimant.

For the unfair termination, the Court exercised discretion to award compensation equivalent to 2 months gross wages based on the 2 years of service, plus 1 month pay in lieu of notice under section 35(1)(c) of the Employment Act. Gross salary for July 2013 was Kshs 27,515/- while basic was Kshs 26,080/-. The compensation was computed at Kshs 55,030/- and pay in lieu of notice at Kshs 26,080/-, totaling Kshs 81,110/-.

The Claimant sought Kshs 7,733/- for 7 days worked without disclosing the month and year, and the head was not proved. His pay slip for August 2013 showed he was paid and signed in acknowledgment, so nothing turned on the claim for wages up to 5 August 2013. The employment letter did not provide for gratuity, and section 35(5) service pay was unavailable since his pay slips showed contributions to the National Social Security Fund.