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Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 732 (KLR)

Said Wabera v China Xinhua News Agency [2018] KEELRC 732 (KLR)

Employment and Labour Relations Court
2 November 2018
952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed by the respondent as an editor/reporter from 14.09.2009 to 31.10.2014, sued for a declaration that his termination was unfair and unlawful, terminal dues of USD 56,370.00, and costs. The court framed three issues. First, it held that the undisputed monthly salary was USD 520.00 throughout service; the claimant's assertion that salary would double to USD 1,040.00 after confirmation failed because he did not produce the alleged contract and his email correspondence did not support it. Second, on fairness, the court found the claimant was terminated by letter dated 31.10.2014 for refusing to sign a fresh contract drafted in Chinese, which he did not understand and which would have extinguished his accrued service benefits. That refusal amounted to a grievance with foundation and was responsible, making the reason for termination unfair and barred by section 46 of the Employment Act. Considering over five years of service, the claimant's lack of contribution to the termination, his desire to remain in employment and the aggravating statutory breach, the court awarded maximum compensation under section 49 of 12 months' gross salary. Third, on other remedies, the court awarded service pay of USD 2,600.00 (one month per year served, the claimant not being an NSSF member), but rejected prayers for salary increment, 60 months' unpaid salary differences, transport and house allowances for want of proof, and declined separate NHIF/NSSF awards. Judgment was entered for the claimant with a declaration of unfair termination, payment of USD 12,480.00 by 15.12.2018 with interest thereafter, and costs of the suit.

Key legal issues

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01

Contractual salary level after confirmation

Holding

Monthly salary remained USD 520.00 throughout service; the alleged doubling to USD 1,040.00 was never agreed

Reasoning

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.

p. 2
02

Fairness of termination for refusing to sign a fresh contract

Holding

Termination unfair and unlawful; the refusal was a valid, responsible grievance protected by section 46

Reasoning

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.

p. 2
03

Compensation for unfair termination

Holding

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

Reasoning

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.

p. 2
04

Service pay/severance

Holding

Claimant entitled to service pay of one month's pay per year served, USD 2,600.00

Reasoning

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.

p. 2

Legal principles established

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  • A termination effected because an employee raised a genuine, well-founded grievance is for an unfair reason and is unlawful

Court orders

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  1. 1.Declaration that the termination of the claimant's contract of service by the respondent was unfair and unlawful
  2. 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. 3.Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Actsection 46
  • Employment Actsection 49
  • Employment Actsection 35
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes ( Employment Act, sections 35, 43, 45, 46 and 49)

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, "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.