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ELRCAllowedCause No. 1729 of 2014· [2018] KEELRC 966 (KLR)

Joseph Muli Njau v Polyflex Industries Limited [2018] KEELRC 966 (KLR)

Employment and Labour Relations Court
4 October 2018
HWHellen S. Wasilwa
798 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2008 and confirmed on annual contract in 2009 as an Assistant Slitter/Rewinder Machine Attendant, claimed damages for unfair dismissal and loss of earnings. He alleged that on 27 March 2014 the Production Manager, Ajay Patel, abused him after he had stopped his machine to answer a call of nature, that he was taken to the Personnel Section, kept waiting for a letter he declined to sign unread, and later handed a dismissal letter. He said his monthly salary was Kshs. 12,000 and that he was never paid overtime or his March 2014 salary. The Respondent admitted the employment but asserted the Claimant left his machine unattended and responded rudely to the Production Manager; it said he was served a warning letter which he refused to sign and left of his own volition, and was thereafter cleared. The Human Resource Manager admitted he was not present when the events occurred. The court framed three issues: valid reasons, due process, and entitlement to relief. It found the Respondent ignored a demand letter from the Claimant's counsel describing the events, never served a dismissal letter, and never invited the Claimant to a disciplinary hearing, so the dismissal lacked valid reason and due process, offending Section 45(2) of the Employment Act. The court awarded one month's salary in lieu of notice, March 2014 salary, and eight months' salary as damages for unlawful dismissal, totaling Kshs. 127,510, plus costs and interest at court rates from the date of judgment.

Key legal issues

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01

Valid reason for dismissal

Holding

The Respondent failed to establish valid reasons for the dismissal.

Reasoning

The Respondent alleged the Claimant refused a warning letter and abandoned work, but gave no notice of any disciplinary process. The Claimant's counsel sent a demand letter describing the events, which the Respondent ignored. Silence in the face of that letter meant the employer could not demonstrate that the reason for termination was valid or fair under Section 45(2) of the Employment Act.

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02

Due process

Holding

No dismissal letter or invitation to a disciplinary hearing was served; procedure was unfair.

Reasoning

The court found the Respondent never served any dismissal letter nor any letter inviting the Claimant to a disciplinary hearing. Given that the Respondent also failed to respond to the demand notice, the court concluded that the employer could have called the Claimant through his counsel for a hearing but chose not to, offending Section 45(2)(c) of the Employment Act on fair procedure.

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Remedies for unfair dismissal

Holding

Notice pay, unpaid March 2014 salary and 8 months' salary as damages awarded.

Reasoning

Having found the dismissal unfair, the court awarded one month's salary in lieu of notice, the unpaid March 2014 salary, and eight months' salary as damages for unlawful dismissal, computed at Kshs. 12,751 per month, together with costs and interest from the date of judgment.

p. 2

Legal principles established

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  • An employer who fails to prove a valid reason, a fair reason and a fair procedure effects an unfair termination.

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 12,751
  2. 2.Salary for March 2014 of Kshs. 12,751
  3. 3.8 months' salary as damages for unlawful dismissal of Kshs. 102,008
  4. 4.Total award of Kshs. 127,510 to the Claimant
  5. 5.Respondent to pay costs of the suit and interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 45(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (memorandum of claim for unfair dismissal under the Employment Act)

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, "Joseph Muli Njau v Polyflex Industries Limited [2018] KEELRC 966 (KLR)", Case Analysis (2018). Cause No. 1729 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/966/eng@2018-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.