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ELRCPartially AllowedMemorandum of Claim dated 21st March 2016· [2018] KEELRC 2022 (KLR)

Christine Tsuma Sanga v Anglican Development Services & another [2018] KEELRC 2022 (KLR)

Employment and Labour Relations Court
18 May 2018
LNLinnet Ndolo
919 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled a hospital unfairly sacked an employee over poor performance without giving her a fair chance to improve, awarding 12 months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the 1st Respondent on 8th March 1993 as an Accounts Clerk (Health Nurse) and deployed to the 2nd Respondent, was suspended on 19th August 2015 on allegations of unsatisfactory and grossly inefficient job performance, and summarily dismissed on 23rd October 2015. She sued for unlawful termination, claiming unpaid salary, notice pay, leave pay, a loan repayment deduction, terminal benefits, compensation, overtime and gratuity. The Respondents maintained she was a problematic and insubordinate employee lawfully dismissed under Section 44(4)(c) and (e) of the Employment Act, 2007, and that she was given an opportunity to be heard. The Court framed two issues: whether the dismissal was lawful and fair, and whether the remedies sought were due. The Court found that the accusations concerned poor performance, and that where poor performance is noted the employer must point it out and give the employee reasonable time to improve; the Respondents instead suspended and then dismissed her. The disciplinary meeting minutes contained no record of specific charges and the Claimant's responses as required by Section 41, and she was disciplined jointly with a colleague without distinct charges. The dismissal was therefore both substantively and procedurally unfair. The Court awarded twelve months' salary as compensation, Kshs. 372,120, jointly and severally against both Respondents, with interest at court rates from the date of judgment. Claims for notice pay and leave pay were dismissed as already paid, and claims for unpaid salary, loan deduction, terminal benefits, overtime and gratuity were dismissed as unproved. The Claimant was awarded costs.

Key legal issues

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01

Whether the Claimant's dismissal was lawful and fair

Holding

The dismissal was both substantively and procedurally unfair; no valid reason was established and Section 41 procedure was violated

Reasoning

The accusations concerned poor performance. The employer suspended the Claimant rather than supporting her to improve, contrary to the jurisprudence that an employee should be given reasonable time to improve. The disciplinary meeting minutes showed no record of specific charges put to the Claimant and her responses as required under Section 41, and she was subjected to a joint disciplinary meeting with a colleague without distinct charges. The employer thus failed under Sections 41 and 43.

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02

Whether the Claimant is entitled to the remedies sought

Holding

Only compensation of twelve months' salary was awarded; other heads failed

Reasoning

The Court awarded twelve months' salary in compensation taking into account the Claimant's length of service and the Respondents' conduct. Claims for notice pay and leave pay failed as these had been paid; claims for unpaid salary, loan deduction, terminal benefits, overtime and gratuity were dismissed for want of proof.

p. 2

Legal principles established

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  • Poor performance must be pointed out and the employee given reasonable time to improve before dismissal
  • An employer must establish a valid reason for dismissal and follow the procedural fairness requirements of Sections 41 and 43 of the Employment Act

Court orders

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  1. 1.Award of twelve (12) months' salary in compensation for unfair dismissal
  2. 2.Dismissal of the claims for one month's pay in lieu of notice and accrued leave pay
  3. 3.Dismissal of the claims for unpaid salary, loan repayment deduction, terminal benefits, overtime and gratuity
  4. 4.Judgment entered in favour of the Claimant against the 1st and 2nd Respondents jointly and severally in the sum of Kshs. 372,120
  5. 5.Interest at court rates from the date of judgment until payment in full
  6. 6.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)(c) and (e)

Cases cited (1)

  • Jane Wairimu Machira v Mugo Waweru & Associates
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Christine Tsuma Sanga v Anglican Development Services & another [2018] KEELRC 2022 (KLR)", Case Analysis (2018). Memorandum of Claim dated 21st March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2022/eng@2018-05-18

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