Judith Shikanda v Jamii Bora Bank Ltd [2019] KEELRC 1215 (KLR)
The bottom line
#A Kenyan court ruled Jamii Bora Bank unfairly dismissed an employee because it couldn't prove it gave her a proper hearing before firing her.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness before summary dismissal
The summary dismissal was unfair because the Respondent did not comply with section 41(2) of the Employment Act, 2007
The employer claimed a Disciplinary Committee heard the Claimant, but under cross examination its witness admitted there was no show cause notice or records of any disciplinary hearing. The witness could not disclose who heard the Claimant's representations, when or where. The Court held section 41(2) imposes a mandatory, peremptory obligation to hear the employee, and its breach rendered the summary dismissal unfair.
Remedies for unfair summary dismissal
One month's salary in lieu of notice and compensation equivalent to 4 months gross salary
Since the dismissal was summary, no written notice under section 35(1)(c) was required, but the Court awarded the equivalent of one month's salary in lieu of notice. Compensation of 4 months gross salary was assessed having regard to the Claimant's approximately 3 years of service with the Respondent.
Claim for unpaid acting allowance
The claim was not proved; no letter of acting appointment was produced and the earlier acting allowance payment was a special approval
The Remuneration and Allowances Policy clause 1.8 provided a 20% acting allowance for senior managers, but the Claimant produced no letter appointing her to act as Head of Human Resources. The Kshs 330,000/- earlier paid was found to have been sanctioned on special request/approval, so the head of claim failed on the burden of proof.
Legal principles established
#- An employer must, under section 41(2) of the Employment Act, hear and consider an employee's representations before summary dismissal on allegations of misconduct
- Compliance with section 41(2) must be evidenced; an employer asserting a disciplinary hearing must show who heard the representations, when and where
Court orders
#- 1.Declaration that the summary dismissal of the Claimant was unfair
- 2.Award of pay in lieu of notice of Kshs 160,000/-
- 3.Award of compensation equivalent to 4 months gross salary, Kshs 640,000/-
- 4.Award of accrued leave of Kshs 67,500/- as admitted by the Respondent
- 5.Total award of Kshs 867,500/- to the Claimant
- 6.Claimant to have costs of the Cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment cause for unfair termination and breach of contract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judith Shikanda v Jamii Bora Bank Ltd [2019] KEELRC 1215 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1215/eng@2019-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.