James Ajack Ndege & another v Golden Harvest Mills (also trading as Uzuri Foods Limited [2018] KEELRC 1265 (KLR)

Employment and Labour Relations Court of Kenya

9 August 2018

ANAbuodha J. N.

856 words in judgment

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The bottom line

Kenya's Employment Court ruled the dismissal of two cleaners unfair because they were never given a hearing before being fired.

What this practically means

Executive summary

Two cleaners in the respondent's Milling Department, employed in 2008 and 2004 respectively, were summarily dismissed on 21st August 2013 on allegations that they were unhygienic at the workplace, having worked the overnight shift. They sued for compensation for unfair termination and terminal dues. The respondent defended the dismissal on grounds of inefficiency, negligence and refusal to obey instructions after several warnings. In oral testimony the respondent's witness conceded in cross-examination that no notice to show cause was issued and no disciplinary hearing was conducted before the dismissals. The court held that although termination is the employer's prerogative, it must be exercised in accordance with the law and rules of natural justice, applying the test of a reasonable employer. It found the alleged prior warnings unsubstantiated, no warning letter having been produced, and concluded that the terminations were procedurally unfair because the claimants were never called upon to answer the accusations against them. The court awarded each claimant one month's salary in lieu of notice and eight months' salary as compensation for unfair termination - Kshs 93,915 for the 1st claimant and Kshs 101,736 for the 2nd claimant - subject to taxes and statutory deductions. Claims for overtime failed because the exhibited payslips showed overtime was paid and the claimants did not itemise unpaid months; the leave claim also failed, the claimant having admitted unawareness of leave encashment. The claimants were awarded costs of the suit.

Key legal issues

Procedural fairness in termination

Holding

The termination was unfair because no notice to show cause was issued and no disciplinary hearing was held

Reasoning

The respondent's witness conceded in cross-examination that no notice to show cause was issued and no disciplinary hearing was conducted. The court held that the Employment Act requires an employer to call an employee to answer accusations before termination. Since this did not happen, the termination was procedurally unfair notwithstanding the alleged infractions.

p. 2

Substantive justification for dismissal

Holding

The respondent failed to substantiate prior warnings allegedly issued to the claimants

Reasoning

Although the respondent claimed the claimants had been previously warned about inefficiency and unhygienic conduct, no warning letter was produced in evidence. Applying the reasonable employer test, the court found the alleged infractions unsubstantiated and the dismissal without a valid, proven reason.

p. 2

Burden of proof on overtime claims

Holding

Claimants failed to prove unpaid overtime

Reasoning

The payslips exhibited by the claimants showed that overtime had been paid. The court held it was incumbent on the claimants to itemise the specific months in which overtime was not paid and to support that claim with the relevant payslips, which they did not do. The overtime claim therefore failed.

p. 2

Legal principles established

Termination of employment must be exercised in accordance with the law and rules of natural justice, judged against the standard of a reasonable employer
Before terminating an employee's services the employer must call the employee to answer the accusations, failing which the termination is unfair

Court orders

1.Payment to James Ajack Ndege of Kshs 10,435 being one month's salary in lieu of notice and Kshs 83,480 (total 93,915) as eight months' salary compensation for unfair termination
2.Payment to Anthony Muhindi of Kshs 11,304 being one month's salary in lieu of notice and Kshs 90,432 (total 101,736) as eight months' salary compensation for unfair termination
3.Awards to both claimants subject to taxes and statutory deductions
4.Both claimants awarded costs of the suit

Authorities

Legislation

Employment Actrequirement to call employee to answer accusations before termination (procedure for termination)

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (cause for unfair termination and terminal dues)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "James Ajack Ndege & another v Golden Harvest Mills (also trading as Uzuri Foods Limited [2018] KEELRC 1265 (KLR)", Case Analysis (2018). Cause 5 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1265/eng@2018-08-09

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