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ELRCPartially AllowedCause No 182 of 2018· [2019] KEELRC 712 (KLR)

Joseph Wahome Karangi v Express Inn [2019] KEELRC 712 (KLR)

Employment and Labour Relations Court of Kenya
8 October 2019
857 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer's phone-call dismissal without notice or a hearing was unfair, awarding the employee compensation, costs and interest.

What this practically means

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Executive summary

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The Claimant, employed as a supervisor on 23rd July 2017 at a monthly salary of Kshs. 25,000/-, sued the Respondent alleging that on 1st March 2018, upon resuming from one month's forced leave, he was verbally terminated by telephone without reasons, notice or payment in lieu. He sought maximum compensation of Kshs. 300,000/-, one month's salary in lieu of notice, February 2018 salary, unpaid public holidays, days off and costs, invoking Section 45 of the Employment Act and Article 41 of the Constitution. The Respondent denied the claims, asserting the termination on 1st February 2018 was for poor performance, that 28 days' net salary in lieu of notice (Kshs. 22,582.87) and 13 pro rata leave days were duly paid, and that clause 8 of the contract permitted termination without notice for gross misconduct. The suit proceeded by consent under Rule 21 of the ELRC (Procedure) Rules 2016. The court held the dismissal unprocedural: the Claimant was dismissed on the very day he was sent on leave, was entitled to notice and to the mandatory Section 41 hearing in the presence of a union representative or fellow employee, which was never accorded. The court awarded 28 days' salary in lieu of notice (Kshs. 22,582.87), three months' salary (Kshs. 75,000/-) as compensation for unlawful and unfair termination, costs of the suit and interest at court rates from the date of judgment until payment in full. The claim for the twelve-month maximum compensation was not granted, and the judgment does not expressly dispose of the claims for February salary, public holidays and days off.

Key legal issues

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01

Procedural fairness of the termination

Holding

The termination was unprocedural and unfair because the Claimant was dismissed on the day he was sent on leave, without notice and without the hearing mandated by Section 41 of the Employment Act

Reasoning

The court held that an employee is entitled to leave, notice and the Section 41 notification. Section 41 is mandatory: an employee accused of misconduct must be heard in the presence of a union representative or fellow employee of their choice. The Claimant was accused of poor performance/misconduct and merely informed of the termination by telephone, with no hearing. Consequently the termination was unfair regardless of the employer's grounds.

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02

Remedies for unlawful termination

Holding

The Claimant was awarded 28 days' salary in lieu of notice, 3 months' salary as compensation, costs and interest

Reasoning

Having found the termination unlawful, the court exercised its discretion to grant notice pay and a compensatory award of three months' salary rather than the twelve months' maximum sought. Costs of the suit and interest at court rates from the date of judgment were also granted.

p. 1

Legal principles established

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  • Section 41 of the Employment Act is mandatory; failure to accord an employee a hearing before termination renders the outcome unfair
  • Terminating an employee on the very day he is sent on leave, without notice, is unprocedural

Court orders

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  1. 1.Payment of 28 days salary in lieu of notice – Kshs. 22,582.87
  2. 2.Payment of 3 months salary as compensation for the unlawful and unfair termination – Kshs. 75,000/-
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the sums awarded at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 46
  • Employment ActSection 41
  • Constitution of KenyaArticle 41(1) and (2)
  • Employment and Labour Relations Court (Procedure) RulesRule 21

Cases cited (2)

  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Employment and Labour Relations Court (Procedure) Rules 2016 (suit disposed of under Rule 21)

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 Wahome Karangi v Express Inn [2019] KEELRC 712 (KLR)", Case Analysis (2019). Cause No 182 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/712/eng@2019-10-08

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