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ELRCPartially AllowedCause at Mombasa – Statement of Claim filed 29th November 2016· [2019] KEELRC 1431 (KLR)

Janvan Gathara Ngunda v Ready Consultancy Company Ltd [2019] KEELRC 1431 (KLR)

Employment and Labour Relations Court
13 June 2019
3,021 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled a courier company's dismissal of its manager unfair because it followed fair procedure but had no proof he absconded, awarding Kshs. 386,537.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent, a labour outsourcing company, from 1st June 2013, was summarily dismissed on 13th July 2016 on allegations of absconding duty. He claimed a total of Kshs. 4,017,200 including damages for unlawful termination, notice pay, unpaid salary, service pay, leave, Public Holiday, Sunday and overtime claims, refunds of unremitted N.H.I.F and N.S.S.F contributions and penalties, and compensation for unfair dismissal. The Respondent maintained he was a Supervisor dismissed for gross misconduct after due process. The Court found, on the contract and corroborating documents and testimony, that the Claimant was a General Manager. Procedurally, the dismissal met the minimum standards of fairness under Sections 41 and 45 of the Employment Act: the Claimant was given two show-cause letters, an opportunity to respond and was heard at a disciplinary meeting. However, the Respondent failed to establish substantive justification: no dates of absence were given and no Client, Supervisor or Employee substantiated the absenteeism allegations. Termination was therefore unfair for want of valid reasons. Claims for holidays, Sundays and overtime failed for want of records; refund and penalty claims were rejected, the Claimant being directed to pursue N.S.S.F and N.H.I.F. The Court awarded annual leave pay of Kshs. 48,461 (42 days), service pay of Kshs. 51,923 (following Tonui v Ngara Opticians), salary arrears of Kshs. 61,153, compensation of 6½ months' salary at Kshs. 195,000, and one month's notice at Kshs. 30,000 – totalling Kshs. 386,537 – plus costs and interest at 14% per annum from the date of Judgment. General damages in addition to statutory compensation were refused. The claim was thus partially allowed.

Key legal issues

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01

Designation of the Claimant

Holding

Claimant was employed as General Manager

Reasoning

The written contract dated 1st June 2013 designating the Claimant General Manager satisfied Section 9(3) of the Employment Act. The Respondent's Human Resource Manager's evidence downgrading him to Supervisor had no foundation and was rejected; corroborated by the Off-days/Holidays Form and Return-to-Work Formula documents.

p. 3
02

Procedural fairness of dismissal

Holding

Procedure met the minimum standards of fairness under Sections 41 and 45

Reasoning

The Claimant received two letters to show cause, responded to one, was invited to a disciplinary hearing, asked for and was granted time to respond, and was heard in the presence of a Director. The Court found no defect in the procedure adopted by the Respondent.

p. 4
03

Substantive justification for termination

Holding

Termination unfair for want of valid grounds – no evidence of absconding

Reasoning

The Respondent gave no dates of absence, called no Client, Supervisor or Employee to substantiate absenteeism allegations, and produced no evidence of absence from work. Fellow Employees portrayed a dutiful Manager. The Respondent thus failed under Sections 43, 45 and 47 of the Employment Act.

p. 4
04

Compensation quantum

Holding

6½ months' salary awarded under Section 49

Reasoning

The Court considered the Claimant's 3 years of service, his useful role quelling industrial strikes and calming grievances, and his expectation to serve until retirement. Though procedurally fairly heard, he was denied substantive justice, justifying the award.

p. 4
05

Service pay eligibility

Holding

Service pay awarded for 3 complete years despite N.S.S.F registration

Reasoning

The Respondent failed to show the Claimant was an actively and fully paid-up N.S.S.F member. Following Elijah Kipkoros Tonui v Ngara Opticians, bare registration does not defeat service pay; the Respondent's own evidence confirmed unresolved N.S.S.F issues.

p. 3

Legal principles established

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  • Bare registration with N.S.S.F does not disqualify an employee from service pay; registration must be active and carry superior social security benefits compared to the service pay regime
  • Procedural fairness alone does not save a termination lacking substantive justification

Court orders

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  1. 1.Declaration that termination was unfair for want of valid reason or reasons
  2. 2.Respondent to pay annual leave at Kshs. 48,461; service pay at Kshs. 51,923; salary arrears at Kshs. 61,153; 6½ months' salary compensation for unfair termination at Kshs. 195,000; and notice pay at Kshs. 30,000 – total Kshs. 386,537
  3. 3.Costs to the Claimant
  4. 4.Interest at 14% per annum from the date of Judgment till payment in full
  5. 5.Prayer (c) in the Statement of Claim expunged from the record

Authorities

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Legislation

  • Employment Act 2007Section 9(3)
  • Employment Act 2007Sections 35(6), 41, 43, 45, 47 and 49

Cases cited (1)

  • Elijah Kipkoros Tonui v. Ngara Opticians T/A Bright Eyes Limited
    [2014] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 9, 35, 41, 43, 45, 47 and 49 applied)

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, "Janvan Gathara Ngunda v Ready Consultancy Company Ltd [2019] KEELRC 1431 (KLR)", Case Analysis (2019). Cause at Mombasa – Statement of Claim filed 29th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1431/eng@2019-06-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.