Moreen Anne Taaka v Naku Sacco Society Limited & 4 others [2018] KEELRC 1998 (KLR)
The bottom line
#A Kenyan court ruled that suspending an employee indefinitely without ever recalling or firing them formally counts as unfair termination under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the indefinite suspension amounted to unfair termination
Yes - the suspension was a disguised termination effected without compliance with Section 41 of the Employment Act
The claimant was suspended indefinitely by letter dated 10th August 2012. The respondent's Staff Policy did not provide for suspension, and suspension is not provided for under the Employment Act, so it could only be resorted to if provided for in the terms of service. The claimant was never recalled from suspension, never issued a letter of termination and never subjected to a disciplinary hearing. The court therefore found the suspension was a disguised termination effected without the Section 41 procedure and declared the termination unfair.
What remedies flow from the unfair termination
Notice pay, leave pay, two months' compensation, certificate of service and half taxed costs; severance, service pay and gratuity refused for want of proof
The court awarded one month's salary in lieu of notice and pay in lieu of 35 days' untaken annual leave. Severance pay was refused because the claimant was not declared redundant. Service pay and gratuity were refused for want of proof of entitlement. Compensation was limited to two months' salary given the short 20-month service and the claimant's own contribution through refusal to cooperate with auditors investigating fraud or record a police statement. A certificate of service was ordered under Section 51.
Legal principles established
#- Suspension of an employee is permissible only if provided for in the terms of service, as it is not provided for under the Employment Act
- An indefinite suspension from which the employee is never recalled and never issued a termination letter amounts to a disguised termination which must comply with Section 41 of the Employment Act
Court orders
#- 1.Declaration that the termination of the claimant's employment was unfair
- 2.Kshs.27,000 being one month's salary in lieu of notice
- 3.Kshs.31,500 being pay in lieu of annual leave (35 days at 1.75 days per month worked)
- 4.Two months' salary (Kshs.54,000) as compensation for unfair termination
- 5.Certificate of service in terms of Section 51 of the Employment Act
- 6.Half of the taxed costs awarded to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moreen Anne Taaka v Naku Sacco Society Limited & 4 others [2018] KEELRC 1998 (KLR)", Case Analysis (2018). Cause No 2264 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1998/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.