Emmanuel Alusa v Parbat Siyani Construction Ltd [2019] KEELRC 908 (KLR)
The bottom line
#A Kenyan court ruled that firing a worker without giving him a chance to defend himself was unfair, awarding him Kshs 55,000 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally fair
The dismissal was unfair because no written notice serving as a show cause was issued and no opportunity to make representations under section 41(2) was afforded.
The termination letter referenced section 44(4)(g) (gross misconduct), which contemplates summary dismissal. Section 41(2) nonetheless requires an opportunity to make representations before summary dismissal. The Respondent's witness could not say who afforded the Claimant a hearing, made his report to management when the Claimant was absent from work, and the letter was handed over the next day. The alleged 'hearing' was likely a mere investigatory process at the site.
Entitlement to salary in lieu of notice
Following the finding of unfair termination, the Claimant is entitled to one month's salary in lieu of notice, quantified at Kshs 15,000/-.
Section 35(1)(c) requires written notice of termination. None was given, as the Respondent's witness admitted. The salary figure was proved by unrebuted oral evidence since the Respondent did not produce pay records, engaging section 10(7) of the Employment Act.
Assessment of compensation for unfair termination
Compensation equivalent to 2 months gross wages (Kshs 30,000/-) was awarded based on about 2 years of service.
The Court exercised its discretion under the Employment Act to assess compensation, taking into account the length of service of approximately 2 years, leading to an award of two months' gross wages.
Entitlement to service pay/gratuity
Service pay of Kshs 10,000/- as claimed was allowed because the Respondent did not controvert it.
With no evidence of NSSF registration or pension scheme membership, section 35(5) and (6) of the Employment Act is implicated, making service pay payable. The Respondent did not challenge the Kshs 10,000/- claimed, so the Court allowed it.
Legal principles established
#- An employer contemplating summary dismissal must afford the employee an opportunity to make representations under section 41(2) of the Employment Act, 2007; an investigatory process conducted by the employer does not amount to such a hearing.
- Where an employer fails to produce pay records, oral testimony as to salary is accepted under section 10(7) of the Employment Act, 2007.
- Where there is no evidence that an employee is registered with NSSF or a member of a pension scheme, the employee is entitled to service pay under section 35(5) and (6) of the Employment Act, 2007.
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair
- 2.Award of salary in lieu of notice of Kshs 15,000/-
- 3.Award of compensation equivalent to 2 months gross wages of Kshs 30,000/-
- 4.Award of service pay of Kshs 10,000/- (total award Kshs 55,000/-)
- 5.The Claimant to have costs of the Cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a Memorandum of Claim for unfair termination and employment benefits (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel Alusa v Parbat Siyani Construction Ltd [2019] KEELRC 908 (KLR)", Case Analysis (2019). Cause (Memorandum of Claim) filed 24 March 2014 - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/908/eng@2019-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.