Sylvie Nirere v M. A. Consulting Group Limited [2019] KEELRC 1349 (KLR)
The bottom line
#A Kenyan court awarded a dismissed employee Kshs 3.5 million because her employer could not prove she performed poorly or follow fair dismissal procedures.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's contract was terminated or it expired
- 2.If the contract was terminated, whether there were valid reasons for termination and if the Claimant was accorded a fair hearing
- 3.What remedies to grant in the circumstances
Key legal issues
#Whether the contract was terminated or expired
The contract was terminated about 11 months and 23 days before its expiry date of 31 July 2015
The court traced the contractual history: the initial 3-year consultancy offer of 5 February 2013 was recalled and replaced by a 3-month consultancy pending a work permit, followed by a 2-year contract commencing 1 August 2013. Since termination occurred on 6 August 2014 while that contract subsisted, the Respondent's assertion that the contract had expired by May 2013 was untrue.
Whether there were valid reasons for termination and a fair hearing
The termination was unfair and unjustified under Sections 43, 41 and 45(2) of the Employment Act
The Respondent alleged poor performance but led no evidence of underperformance and had no performance contract or appraisal report, as RW1 admitted in cross-examination. Under Section 43 the employer bears the burden of proving the reason for termination. Further, no disciplinary process was conducted as required by Section 41 before termination on grounds of poor performance, so both substantive and procedural fairness failed.
What remedies to grant
The Claimant was awarded remuneration for the unexpired contract term, notice pay, unpaid maternity leave, gratuity for one year and six months' salary as compensation for unfair termination, totalling Kshs 3,545,000
Having found the termination unfair and the contract subsisting until 31 July 2015, the court compensated the Claimant for the remainder of the contract term at the enhanced salary of Kshs 150,000 per month, added one month's notice pay, 53 days of unpaid maternity leave, gratuity at 25% of annual gross for one year and six months' salary under Section 49 as compensation, plus costs and interest.
Legal principles established
#- The burden of proving the reasons for termination rests on the employer, and where the employer fails to discharge it, the termination is deemed unfair
- An employer must subject an employee to a fair procedure including a disciplinary process before terminating employment on grounds of poor performance
- Denial of the statutory maternity leave entitlement is compensable as part of terminal dues
Court orders
#- 1.Payment of salaries for the remainder of the contract term: 150,000 x 11 months = Kshs 1,650,000
- 2.Payment of 23 days' salary: 23/30 x 150,000 = Kshs 115,000
- 3.Payment of 1 month salary in lieu of notice = Kshs 150,000
- 4.Payment for unpaid maternity leave of 53 days = 53/30 x 150,000 = Kshs 280,000
- 5.Payment of gratuity for 1 year = 25/100 x 1,800,000 = Kshs 450,000
- 6.Payment of 6 months' salary as compensation for unfair termination = Kshs 900,000
- 7.Total award of Kshs 3,545,000
- 8.Claimant entitled to costs of the suit
- 9.Interest at court rates with effect from the date of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes (Employment Act 2007)
Relief refused
#Compensation computed at 180,000 per month rather than at the enhanced salary of 150,000 used for the remainder-of-contract claim
The court awarded 6 months' salary as compensation using a monthly figure of 180,000, which does not match the 150,000 salary used elsewhere in the award
Costs
The Claimant is entitled to costs of the suit and interest at court rates with effect from the date of the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of these findings, I find that the termination of the Claimant was unfair and unjustified as provided under Section 45(2) of Employment Act 2007
Thus, when an employer alleges that the employee was performing poorly, the onus of proving this rests within him. The Respondent failed to do this.
Other than this, the Respondent failed to subject the Claimant to any disciplinary process as provided for under Section 41 of Employment Act 2007
1. Salaries for reminder of contract term being 150,000 x 11 months = 1,650,000/= 2. And 23 days/30 x 150,000 = 115,000/= 3. 1 month salary in lieu of notice = 150,000/= 4. Unpaid maternity leave of 53 days = 53/30 x 150,000= 280,000/= 5. Gratuity for 1 year = 25/100 x 1,800,000= 450,000 6. 6 months salary as compensation for unfair termination = 6 x 180,000= 900,000/= TOTAL = 3,545,000/= 7. The Claimant is also entitled to costs and interest at Court rates with effect from the date of this Judgement.
Issues in the judgment
#Arithmetic inconsistency in the compensation award: the court elsewhere fixes the salary at 150,000 per month but computes six months' compensation at 180,000 per month, and the maternity leave award (280,000) does not exactly match its own formula (53/30 x 150,000 = 265,000)
The total award of 3,545,000 does not tally with the sum of the listed items (1,650,000 + 115,000 + 150,000 + 280,000 + 450,000 + 900,000 = 3,545,000 using the figures as printed, so no discrepancy on the printed figures; however the Respondent's counter-claim of Kshs 61,363.80 was not expressly addressed or dismissed in the final orders despite the court stating it finds for the Claimant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sylvie Nirere v M. A. Consulting Group Limited [2019] KEELRC 1349 (KLR)", Case Analysis (2019). Cause No. 2069 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1349/eng@2019-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.