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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 1215 (KLR)

Judith Shikanda v Jamii Bora Bank Ltd [2019] KEELRC 1215 (KLR)

Employment and Labour Relations Court
12 July 2019
902 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 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

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Executive summary

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The Claimant was employed by Jamii Bora Bank Ltd on 17 January 2011 as an Assistant Human Resource Officer, promoted to Human Resource Manager on 10 January 2013, and transferred to Administration Manager on 23 January 2014. The very next day she was summarily dismissed for allegedly receiving EXCO minutes without authority. She sued for breach of contract and unfair termination. The Court found the summary dismissal unfair because the Respondent breached the mandatory procedural requirements of section 41(2) of the Employment Act, 2007: although the Respondent asserted that a Disciplinary Committee had heard the Claimant, its witness admitted under cross examination that there was no show cause notice or records of any disciplinary hearing, and could not say who heard the Claimant's representations, when or where. The Court awarded one month's salary in lieu of notice (Kshs 160,000/-) and compensation equivalent to four months gross salary (Kshs 640,000/-), the latter assessed against roughly three years of service. On the contractual claims, the Court allowed accrued leave as admitted by the Respondent at Kshs 67,500/- (against Kshs 80,000/- pleaded), but rejected the claim for unpaid acting allowance of Kshs 912,000/- because the Claimant produced no letter appointing her to act as Head of Human Resources, and the earlier payment of Kshs 330,000/- was treated as sanctioned on special approval. The Court found no breach of contract, entered judgment for a total of Kshs 867,500/- and awarded the Claimant costs.

Key legal issues

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01

Procedural fairness before summary dismissal

Holding

The summary dismissal was unfair because the Respondent did not comply with section 41(2) of the Employment Act, 2007

Reasoning

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.

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02

Remedies for unfair summary dismissal

Holding

One month's salary in lieu of notice and compensation equivalent to 4 months gross salary

Reasoning

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.

p. 2
03

Claim for unpaid acting allowance

Holding

The claim was not proved; no letter of acting appointment was produced and the earlier acting allowance payment was a special approval

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.Declaration that the summary dismissal of the Claimant was unfair
  2. 2.Award of pay in lieu of notice of Kshs 160,000/-
  3. 3.Award of compensation equivalent to 4 months gross salary, Kshs 640,000/-
  4. 4.Award of accrued leave of Kshs 67,500/- as admitted by the Respondent
  5. 5.Total award of Kshs 867,500/- to the Claimant
  6. 6.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment cause for unfair termination and breach of contract)

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, "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.