Said Wabera v China Xinhua News Agency [2018] KEELRC 732 (KLR)
The bottom line
#A Kenyan court ruled that sacking an employee for refusing to sign a contract he could not read was unfair, awarding maximum compensation.
What this practically means
#Executive summary
#Key legal issues
#Contractual salary level after confirmation
Monthly salary remained USD 520.00 throughout service; the alleged doubling to USD 1,040.00 was never agreed
The claimant alleged the contract provided salary would double after probation but did not produce the contract, admitting it was in the respondent's possession. His email correspondence of 28.10.2014 did not state that salary was to double. The court found the undisputed salary was USD 520.00 and that a higher pay was being pressed but never agreed.
Fairness of termination for refusing to sign a fresh contract
Termination unfair and unlawful; the refusal was a valid, responsible grievance protected by section 46
The claimant was terminated for refusing to sign a fresh contract in Chinese which he did not understand and which would supersede his earlier contract, costing him accrued benefits. The court found the grievance had foundation, making the reason unfair and barred by section 46. Entitlement to maximum compensation under section 49 followed.
Compensation for unfair termination
Maximum compensation of 12 months' gross salary at USD 520.00 per month, totalling USD 6,240.00, but award entered at USD 12,480.00
The court considered over 5 years of service, the claimant's non-contribution to the termination, his desire to continue in service, and the aggravating factor that termination was for a statutory-barred unfair reason, justifying maximum compensation under section 49.
Service pay/severance
Claimant entitled to service pay of one month's pay per year served, USD 2,600.00
The claimant was not a member of NSSF and there was no alternative pension arrangement, engaging section 35 of the Employment Act; one month's pay per year of service was a fair rate.
Legal principles established
#- A termination effected because an employee raised a genuine, well-founded grievance is for an unfair reason and is unlawful
Court orders
#- 1.Declaration that the termination of the claimant's contract of service by the respondent was unfair and unlawful
- 2.Respondent to pay the claimant USD 12,480.00 by 15.12.2018 failing interest at court rates from the date of judgment till full payment
- 3.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes ( Employment Act, sections 35, 43, 45, 46 and 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Wabera v China Xinhua News Agency [2018] KEELRC 732 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/732/eng@2018-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.