Jacqueline Arkle v Five Forty Aviation Limited [2018] KEELRC 933 (KLR)
The bottom line
#A Kenyan court ordered Fly 540 to pay an ex-employee over Kshs. 5 million and USD 43,000 for firing her unfairly and defaming her publicly.
What this practically means
#Executive summary
#Key legal issues
#Whether termination for poor performance was procedurally fair
Termination was substantively and procedurally unfair; no performance improvement programme, no documented charges, and inadequate notice of the disciplinary meeting
The Court applied Section 41 of the Employment Act and the KSRITAWU standard requiring an employee to be pointed out shortcomings and given time to improve. The Respondent relied only on a terse email warning; the disciplinary meeting was convened with no agenda, on the date of the Claimant's arrival from Uganda, before a panel composed of the employer's external counsel and the Claimant's accuser, making a fair hearing impossible.
Whether repeated public advertisements about the termination amounted to defamation
Yes; the repeated advertisements, including on www.dontemployme.com, were actuated by malice and the Claimant proved defamation
Though the advertisement content was factual, the Claimant's claim was one of defamation by conduct. A single notice advertisement to guard against third-party liability would suffice; a series required inquiry into bona fides. The Respondent did not explain the repetition, its full address appeared on the website posting, and the callous handling of the exit evidenced malice.
Whether deductions for unissued credit tickets were lawful
The surcharge was unlawful as it was effected without due process
Recovery of ticket costs from the Claimant's terminal dues amounted to a disciplinary surcharge imposed without due process, relying on Fred Makori and Kenya National Library Services Board v Ayoti. The USD 5,135 was therefore refundable.
Whether the signed full and final settlement discharge barred the claim
No; a discharge does not absolve an employer from its obligations
The Respondent argued the Claimant voluntarily signed for terminal dues in full and final settlement. The Court, citing Simon Muguku Gichigi v Taifa Sacco Limited, held that a discharge by itself does not absolve an employer from its obligations to an employee, so the discharge did not defeat the claim.
Legal principles established
#- Poor performance termination requires the employer to point out shortcomings and give the employee a reasonable opportunity to improve
- Grounds for termination, though lawful, must be established prior to termination
- Defamation will lie where the defendant's actions are motivated by malice
- A discharge/full-and-final settlement receipt by itself does not absolve an employer from its obligations to an employee
- Surcharging an employee without due process amounts to unlawful disciplinary action
- The Employment Act sets only minimum conditions of service; employers may offer superior terms including service pay even where employees are NSSF members
Court orders
#- 1.Dismissal of the Respondent's entire counterclaim
- 2.Judgment for the Claimant of USD 38,000 being ten months' salary as compensation for unlawful and unfair termination
- 3.Kshs. 5,000,000 as damages for defamation
- 4.USD 5,135 being refund of unlawful surcharge on account of air tickets for Kamanga Mwangi and Uganda Rugby Union
- 5.Interest on the awarded amounts at court rates from the date of delivery of judgment until payment in full
- 6.Respondent directed to issue the Claimant with a certificate of service
- 7.Respondent to pay the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 41 procedural fairness applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacqueline Arkle v Five Forty Aviation Limited [2018] KEELRC 933 (KLR)", Case Analysis (2018). Employment and Labour Relations Court Claim (Statement of Claim dated 27th August 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/933/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.