Stephen Ndungu Nderitu v Harish Patel & 2 others [2019] KEELRC 1363 (KLR)
The bottom line
#Kenya's Employment Court ruled the dismissal unfair because the employer couldn't prove poor performance or a fair hearing, awarding notice pay plus 8 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondents had valid reasons to terminate the Claimant
No valid reason was proved; the allegation of poor performance was unsupported by evidence and there was no proof of prior warnings
The Respondents alleged the Claimant was terminated for poor performance, supported by warning letters annexed to their Reply. However, the Claimant denied ever receiving the warnings, and the Respondents led no evidence of the poor performance or of the warnings being served. Under section 43, the burden lay on the employer, which it failed to discharge.
Whether the Claimant was given a fair hearing before dismissal
No fair hearing was accorded; the claim of a disciplinary meeting was unsubstantiated as no minutes were produced
Section 41 requires an employer to explain reasons for contemplated termination and hear the employee's representations. The Respondents asserted that a disciplinary meeting was convened and the Claimant given a chance to respond, but produced no minutes. The Claimant testified he was verbally terminated by the 2nd Respondent with no formal process. The court found no proof of a fair hearing.
Whether the Claimant is entitled to the remedies sought
Partially entitled: one month's notice pay and 8 months' salary as compensation awarded; heads such as 15 years' unserved economic injury, car usage compensation and leave not awarded
Finding the termination unfair and unjustified under section 45(2), the court exercised its discretion under the Employment Act to award one month's salary in lieu of notice and 8 months' gross salary as compensation, less statutory deductions, together with costs and interest, rather than the full tabulated claim of Kshs. 15,700,000.
Legal principles established
#- In any claim arising out of termination of a contract, the employer bears the burden of proving the reason or reasons for the termination; failure to do so renders the termination unfair under section 45.
- An employer must, before terminating on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and hear their representations as required by section 41.
- A termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure.
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 91,989
- 2.8 months' salary as compensation for unlawful termination (8 x 91,989 = 735,912), less statutory deductions
- 3.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Ndungu Nderitu v Harish Patel & 2 others [2019] KEELRC 1363 (KLR)", Case Analysis (2019). Cause No. 559 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1363/eng@2019-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.