Fredrick Waswa Khaemba v Chandarana Supermarket Limited [2018] KEELRC 1578 (KLR)
The bottom line
#A Kenyan supermarket was ordered to pay a former employee Kshs. 155,203 because it could not prove why he was dismissed or give him a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was fair and justified
The dismissal was unfair and unjustified because the Respondent gave no reasons, issued no dismissal letter and accorded the Claimant no fair disciplinary hearing, and led no evidence to rebut the claim
The Respondent pleaded summary dismissal for gross misconduct but led no evidence to support the allegation or rebut the Claimant's case. The court found the Claimant's case uncontroverted: he was dismissed orally without a dismissal letter, so the reason for dismissal was unclear. Failure to explain why the Claimant was dismissed offended the rule as to fairness. Sections 43 and 41 of the Employment Act required the employer to prove valid reasons and accord a fair hearing, neither of which was done, making the dismissal unfair under section 45(2).
What remedies flow from the unfair dismissal
The Claimant was awarded one month's salary in lieu of notice, eight months' salary as damages for unlawful termination, leave pay for 2008 and salary for days worked in December 2010, totalling Kshs. 155,203, plus costs and interest
Having found the dismissal unfair, the court exercised its remedial jurisdiction under the Employment Act. It awarded notice pay of one month, the equivalent of eight months' salary as damages for unlawful termination, accrued leave for 2008 and salary for six days worked in December 2010. No severance pay was awarded notwithstanding the redundancy framing of the claim.
Effect of the Respondent's failure to adduce evidence
The Claimant's case stood uncontroverted and was accepted on the pleadings, evidence and submissions
The Respondent, though asserting summary dismissal for gross misconduct under section 44(4)(c) of the Employment Act, did not lead any evidence to support the allegations in its Statement of Response or to rebut the Claimant's testimony. Citing Court of Appeal authority on documents marked for identification, the court treated the Claimant's case as uncontroverted and decided the matter on the Claimant's material.
Legal principles established
#- An employer bears the burden of proving the reason or reasons for termination, and failure to do so renders the termination unfair under section 45 of the Employment Act
- Before terminating or summarily dismissing an employee for misconduct, an employer must explain the reasons and hear and consider the employee's representations, as required by section 41 of the Employment Act
- Evidence not adduced or rebutted leaves the claimant's case uncontroverted
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs. 15,216
- 2.Payment of 8 months' salary as damages for unlawful termination of Kshs. 121,278
- 3.Payment for leave for year 2008 of Kshs. 15,216
- 4.Payment of salary for 6 days worked in December 2010 of Kshs. 3,043
- 5.Total award of Kshs. 155,203
- 6.Respondent to pay costs of the suit plus interest with effect from the date of the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court; claim brought under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Waswa Khaemba v Chandarana Supermarket Limited [2018] KEELRC 1578 (KLR)", Case Analysis (2018). Cause No. 813 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1578/eng@2018-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.