Peter Wesonga Opaka v Hilltop Preparatory School & Hilltop Company Limited (Cause 86 of 2016) [2019] KEELRC 1209 (KLR)

RW1 claimed investigations were carried out and the claimant was summoned by the Board, but the respondent produced no investigation report, no letter inviting the claimant to a disciplinary hearing and no minutes. RW1, being junior to the claimant, did not participate in the disciplinary process and could not confirm a hearing occurred. The claimant's testimony that he was never called to present his case therefore stood unrebutted, and the respondent failed to discharge its burden under Sections 41, 43 and 47(5) of the Employment Act.

The court agreed with the respondent that neither the contract nor the law provides for payment of the unexpired term. Relying on Robert Kennedy Moi, Linnet Ndolo and Gabriel Kariuki Chomba, the court held that the law does not provide for anticipatory income and that Section 49(4)(e) requires employees to mitigate losses. Having obtained another job three months after dismissal, an award of the unexpired term would be disproportionate to the injury suffered.

The contract provided for three months' notice, so notice pay was awarded. For compensation, the court applied the statutory factors, taking into account the short length of service (11 months), the dismissal without notice or hearing and without terminal dues, the claimant's senior position as Head Teacher, the delay in obtaining comparable employment, the absence of valid reason for termination and hence lack of contribution by the claimant.

The court held that as Head Teacher the claimant had a duty to ensure the school ran properly and his salary already factored in responsibilities performed outside normal working hours, so no overtime was payable. On leave, the claimant did not prove that he did not take leave during school recess as provided in his contract, so the leave claim also failed.