Eudia W. Njuma v Airworks (K) Limited [2018] KEELRC 714 (KLR)
The bottom line
#A Kenyan court ruled a pilot's dismissal unfair because the airline never gave her a hearing, despite valid reasons for firing her.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee entitled to Section 41 safeguards despite the unsigned contract
Yes; the Respondent's conduct in paying her salary and dismissing her for absconding established employment.
The court found it untenable for the Respondent to deny employment while failing to produce the allegedly unsigned letter of offer. The Respondent paid the Claimant's salary and dismissed her for absconding work. Denying her Section 41 safeguards would run counter to the Respondent's own conduct, since it treated her as an employee in 2012.
Whether there was substantive justification for the dismissal
Yes; there was basis for the dismissal on absenteeism, though the Claimant's logbook evidence left questions unanswered and she was not entirely honest.
The court accepted that the Claimant was absent for a period and that an explanation was sought. Her testimony did not come across as entirely honest; she claimed she could sign as P1 despite sitting on the right as first officer. The logbook produced left many questions unanswered, so the court found basis for the dismissal.
Whether the termination was procedurally fair under Section 41
No; the Respondent abridged procedural fairness by not calling the Claimant for a hearing, rendering the dismissal unfair.
It was not in dispute that the Respondent did not call the Claimant for a hearing as required under Section 41(2). Having established cause, the Respondent ought to have accorded the Claimant the safeguards under the Employment Act. The failure rendered the dismissal unfair, entitling her to notice and compensation, reduced for her contribution.
Legal principles established
#- Even where dismissal is merited, the dismissal must accord with the law, including the procedural safeguards of Section 41 of the Employment Act.
- An employer who treats a person as its employee and pays her salary cannot deny her the statutory safeguards on the basis of an unsigned contract.
Court orders
#- 1.One month notice USD 1,800
- 2.One month compensation USD 1,800
- 3.½ the costs for the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair and wrongful termination claims under the Employment Act (Sections 41, 43, 45(2) and 74 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eudia W. Njuma v Airworks (K) Limited [2018] KEELRC 714 (KLR)", Case Analysis (2018). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/714/eng@2018-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.