Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 1462 (KLR)

Julia Cooper Rust v Academy of Dance & Arts [2019] KEELRC 1462 (KLR)

Employment and Labour Relations Court
31 May 2019
4,199 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed that even when an employee causes their own dismissal, employers must still follow fair termination procedures—though serious employee misconduct can eliminate any compensation.

What this practically means

#

Executive summary

#
The claimant, an American dance teacher employed by the respondent as Dance Teacher and Artistic Director under a 25-month contract from 01.06.2014, was summarily dismissed by email dated 19.12.2014 while on Christmas holiday in the USA, for alleged gross misconduct including promoting her own dance school using the respondent's premises, students and facilities, and rudeness towards management and students. She sued for a declaration that the dismissal was unlawful, 12 months' compensation, three months' notice pay, various allowances, accrued leave, general damages, a certificate of service and return of personal property. The respondent counterclaimed for general damages for breach of fiduciary duty, alleging the claimant solicited parents and students to a rival school. The court found the dismissal procedurally unfair for want of prior notice and hearing under section 41 of the Employment Act, but held the defect excusable given prior meetings, emails and mediation. It found the reasons for termination substantially valid: the claimant had used her position to promote Dance Centre Limited, having misled the court on its registration date, and had been rude to the director in emails. The allegation of shouting at students was not established. The claimant was held to have contributed 100% to her dismissal, so no compensation was awarded, and most monetary prayers failed for want of contractual basis or evidence. The counterclaim failed because the alleged loss was not pleaded or strictly proved and duplicated an earlier suit in the Chief Magistrate's Court. Each party was ordered to bear own costs, and the respondent to issue a certificate of service by 01.07.2019.

Key legal issues

#
01

Procedural fairness of summary dismissal

Holding

Dismissal was procedurally unfair as no prior notice or hearing was given under section 41, but the defect was excusable given prior meetings, emails and mediation initiatives

Reasoning

The respondent dismissed the claimant by email without prior notice or a hearing, contrary to section 41 of the Employment Act. However, the parties had held meetings, exchanged emails and engaged in mediation about the claimant's misconduct before dismissal, so the omission to serve notice, even a shorter one, was excusable. The court drew on Jared Aimba v Fina Bank and Shankar Saklani v DHL.

p. 3
02

Validity of reasons for termination

Holding

Reasons of using respondent's facilities and students to promote a rival dance school, and rudeness to management, were substantially valid; allegation of shouting at students failed

Reasoning

Evidence showed the claimant had registered and promoted Dance Centre Limited while employed by the respondent and misled the court about the registration date, using the respondent's letterhead and premises to advance a rival venture. Rudeness was established through emails ridiculing the director. The allegation of shouting at and terrifying students was contradicted by student letters and was not established.

p. 4
03

Compensation under section 49

Holding

No compensation awarded because the claimant contributed 100% to her dismissal and had served only about 7 months

Reasoning

The court considered section 49 factors: short service of about 7 months, the claimant's full contribution to the termination, and the respondent's mitigation efforts through meetings and mediation. Despite the procedural defect, no compensation was warranted. The respondent was entitled to treat the misconduct as gross misconduct justifying shorter notice.

p. 4
04

Counterclaim for breach of fiduciary duty

Holding

Counterclaim failed: loss not pleaded or strictly proved, no submissions on quantum, and it was an abuse of process duplicating a prior suit

Reasoning

The alleged loss was liquidated but unquantified and unpleaded; the accountant conceded there was no documentation that students left for Dance Centre Kenya and no audit reports were filed. Applying the rule that special damages must be pleaded and strictly proved, the counterclaim failed. It also duplicated Civil Suit No. 1026 of 2015 pending in the Chief Magistrate's Court, amounting to abuse of process.

p. 5

Legal principles established

#
  • Termination for a valid reason or on grounds of misconduct must be accompanied by a fair process including notification of grounds and a hearing prior to termination
  • Notice and a hearing are mandatory even in cases of summary dismissal, though the notice may be shorter than that prescribed by statute or contract
  • Special damages must be specifically pleaded and strictly proved
  • A plaintiff is under a duty to present evidence to prove his claim

Court orders

#
  1. 1.Each party to bear own costs of the proceedings
  2. 2.The respondent to deliver to the claimant a certificate of service by 01.07.2019 and as per section 51 of the Employment Act, 2007

Authorities

#

Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 45
  • Employment Act, 2007section 43
  • Employment Act, 2007section 49
  • Employment Act, 2007section 28
  • Employment Act, 2007section 51

Cases cited (4)

  • Jared Aimba –Versus- Fina Bank Limited
    [2016]eKLR
  • Shankar Saklani –Versus- DHL Global Forwarding (K) Limited
    [2012]eKLR
  • Abudi Ali Mahadhi –Versus= Ramadhani Saidi & Freight Forwarders Limited
    [1999]eKLR
  • Africa Line Transport Company & Another –Versus- Sylvester Keitany
    [2017]eKLR
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Julia Cooper Rust v Academy of Dance & Arts [2019] KEELRC 1462 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1462/eng@2019-05-31

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