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ELRCPartially Allowednot_stated· [2019] KEELRC 1038 (KLR)

Gikandi Sarah Wamuyu v Central Memorial Hospital Limited [2019] KEELRC 1038 (KLR)

Employment and Labour Relations Court
22 July 2019
1,919 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan hospital was ordered to pay a receptionist 12 months' salary after dismissing her without a hearing, notice, or any evidence of misconduct.

What this practically means

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Executive summary

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The Claimant, employed as a receptionist and health records and information personnel from 1st May 2017 on a monthly salary of Kshs. 15,248/-, sued the Respondent hospital for unfair and unlawful summary termination on 2nd November 2017 following an incident in which she was orienting a new employee and was publicly reprimanded by the director, Dr. K.J. Shah. She sought a declaration that her termination was unlawful, twelve months' salary as compensation, unpaid salary for October 2017 and days worked in November 2017, exemplary damages, a certificate of service, a fine against the Respondent, interest and costs. The Respondent denied dismissing her, contending she deserted duty amid allegations she demanded cash from patients, and sought dismissal of the claim. The court found the dismissal was effected orally in the most callous fashion, without notice to show cause, charges, or any disciplinary hearing, in breach of Section 41 of the Employment Act. The Respondent produced no documentary evidence of desertion or misconduct and failed to discharge its burden under Section 43. It also failed to produce records under Section 74 to prove payment of salary. The court awarded the October 2017 salary of Kshs. 15,248/-, Kshs. 1,016.50 for days worked in November 2017, one month's salary in lieu of notice, twelve months' salary as compensation (Kshs. 182,976/-), interest on these sums, a certificate of service and costs of the suit.

Key legal issues

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01

Whether the Respondent proved a valid reason for termination (dismissal vs desertion)

Holding

The Respondent failed to discharge its burden under Section 43 of the Employment Act; the allegations of desertion and misconduct were unsupported by any documentary evidence and were an afterthought.

Reasoning

The Respondent alleged the Claimant deserted duty and demanded cash from patients, yet its own witness confirmed there were no letters, police reports or documents on record supporting these claims, and no letter seeking to establish her whereabouts. The court found the Respondent did not initiate any disciplinary process and did not discharge its burden of proving the reasons for termination.

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02

Whether the dismissal was procedurally fair under Section 41 of the Employment Act

Holding

The oral summary dismissal was procedurally unfair: no notice to show cause, no charges, no hearing, and no opportunity to make representations was afforded to the Claimant.

Reasoning

The Claimant was dismissed orally after a humiliating incident at the reception without any disciplinary process. The court adopted Radido J.'s reasoning in Samuel Muchiri Gikonyo v Henkel Chemicals (EA) Limited that procedural fairness requires the employee be informed the dismissal is under consideration, be furnished with charges, and be given time to respond. None of these safeguards were met.

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Whether the Claimant was entitled to unpaid salary and compensation

Holding

The Respondent, having failed to produce employment records under Section 74 to prove payment, was liable for the unpaid October 2017 salary, November 2017 days worked, notice pay, and 12 months' compensation for unfair dismissal.

Reasoning

The Claimant asserted she was not paid her October and November salary; the Respondent as employer failed to produce records in terms of Section 74 of the Employment Act. Having failed to prove payment, the Claimant was entitled to the unpaid salary. Her unfair dismissal, being without valid reason or procedure, attracted the maximum compensation of 12 months' gross salary.

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Legal principles established

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  • An employer who alleges dismissal-related misconduct must produce evidence of that misconduct; bare allegations without documentary support do not discharge the burden of justifying a termination under Sections 41 and 43 of the Employment Act.
  • A dismissal effected without notice to show cause, charges, or a disciplinary hearing violates the procedural fairness safeguards of Section 41 of the Employment Act and is illegal and unfair.
  • Where an employer fails to produce records to prove payment of salary, the employee is entitled to the unpaid salary claimed.

Court orders

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  1. 1.Payment of salary for October 2017 of Kshs. 15,248/-
  2. 2.Payment of salary for days worked in November 2017 of Kshs. 1,016.50
  3. 3.Payment of one month's salary in lieu of notice of Kshs. 15,248/-
  4. 4.Payment of 12 months' salary as compensation for unfair dismissal of Kshs. 182,976/-
  5. 5.Interest at court rates on the October 2017 salary, November 2017 salary and notice pay from date of filing suit till payment in full
  6. 6.Interest on the 12 months' compensation at court rates from date of judgment till payment in full
  7. 7.Issuance of a certificate of service
  8. 8.Costs of the suit to the Claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41(1), 47, 50
  • Employment ActSections 12, 41, 43, 45, 47(5), 51(3), 74

Cases cited (2)

  • Samuel Muchiri Gikonyo v Henkel Chemicals (EA) Limited
    [2014] eKLR
  • Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Ltd
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims (claim for unfair and unlawful termination under the Employment Act); no specific constitutional provision for jurisdiction stated in the judgment.

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, "Gikandi Sarah Wamuyu v Central Memorial Hospital Limited [2019] KEELRC 1038 (KLR)", Case Analysis (2019). not_stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1038/eng@2019-07-22

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