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ELRCDismissedCause No. 474 of 2017· [2019] KEELRC 1726 (KLR)

Consolata Kemunto Aming’a v Milimani High School [2019] KEELRC 1726 (KLR)

Employment and Labour Relations Court of Kenya
29 April 2019
MMM. Mbaru
2,841 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 dismissed a cook's case against her school because she didn't follow procedure or prove her claims, though she got a service certificate.

What this practically means

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Executive summary

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The claimant, employed as a Cook from 7th May 2013 on a monthly wage of Ksh.9,830.00, was issued a show cause notice on 21st February 2017 over alleged threatening messages to the bursar, insubordination, and irregularly admitting a form one student. After a written response, she was dismissed by letter of 28th March 2017 and paid notice pay and March 2017 wages. She sued for reinstatement, notice pay, leave, service pay, house allowance, damages for wrongful and unfair termination, unpaid salary, unfair deductions, a certificate of service, costs and interests. The court framed three issues: whether the dismissal was wrongful, unlawful or unfair; whether remedies should issue; and costs. It found absence from work without cause was gross misconduct under section 44(4) of the Employment Act justifying summary dismissal, but that the respondent took the action of terminating the contract with notice pay. Although the respondent failed to follow section 41 procedure by not affording a hearing with a fellow employee, the claimant pleaded no particulars of breach of contract, so damages were not payable. Leave claims would amount to unjust enrichment given the school holiday rotation; service pay was barred by NSSF registration under section 35(5); house allowance was not justified above Wage Order wages; and the deductions claim was ambiguous. The suit was dismissed save for an order that a Certificate of Service issue under section 51, with the claimant to pay 50% of the respondent's costs.

Key legal issues

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01

Whether the summary dismissal was wrongful, unlawful and or unfair

Holding

The dismissal was substantively justified (unjustified absence was gross misconduct) but the respondent followed no procedure under section 41; however the action taken was contract termination with notice pay, not summary dismissal.

Reasoning

The claimant was issued a show cause notice and replied, but was not called to a hearing in the presence of a fellow employee as section 41 of the Employment Act requires. The court found the procedures adopted did not adhere to section 41. Yet the respondent's actual action was termination of the contract with one month's notice pay rather than summary dismissal, and absence without leave was gross misconduct for which summary dismissal should have issued, making the notice pay generous.

p. 4
02

Whether damages for wrongful and unfair termination are payable

Holding

Damages for wrongful termination are not payable because no breach of contract was pleaded or particularised.

Reasoning

Damages for breach of contract require particulars of damage to be pleaded and proved; the claimant's memorandum of claim set out matters relating only to unfair termination under section 49 of the Employment Act. The action taken by the respondent was termination of the contract with notice pay rather than summary dismissal, so on the failure to plead any breach, damages were not payable.

p. 3
03

Claims for leave, service pay, house allowance and unfair deductions

Holding

All these claims fail: leave was covered by school holiday rotation, service pay is barred by NSSF registration, house allowance is not justified above Wage Order wages, and the deductions claim was ambiguous.

Reasoning

The claimant worked only one week of each school holiday by rotation, leaving nine weeks off each year, so leave claims would be unjust enrichment. The respondent registered her with NSSF under section 35(5), defeating service pay. Her wage exceeded the Wage Orders, precluding house allowance. The deductions claim of Ksh.7,330.00 was ambiguous, with Ksh.3,330.00 unexplained by either party, and awarding an ambiguous claim would not meet the ends of justice.

p. 5

Legal principles established

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  • Even where gross misconduct justifies summary dismissal, the employer must still accord the employee notice and a hearing before dismissal, failing which the termination is unfair
  • Unfair termination involves breach of statutory procedure; wrongful dismissal involves breach of the employment contract such as dismissal without notice
  • A claim for damages for breach of contract must be based on pleaded and particularised particulars of damage
  • A finding of insubordination requires the person alleging it to give evidence for interrogation by the subject employee
  • Service pay is not due where the employer has registered the employee with the NSSF under section 35(5) of the Employment Act

Court orders

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  1. 1.The suit is dismissed
  2. 2.A Certificate of Service shall be issued to the claimant in accordance with section 51 of the Employment Act, 2007
  3. 3.The claimant shall pay 50% of the costs due to the respondent

Authorities

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Legislation

  • Employment Act, 2007section 35(5)
  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 44(3) and (4)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 51
  • Regulation of Wages (General) (Amendment) Order, 2013

Cases cited (2)

  • Standard Group Limited versus Jenny Luesby
    [2018] eKLR
  • CMC Aviation Limited versus Mohammed Noor
    Civil Appeal No. 199 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007 and the Employment and Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Consolata Kemunto Aming’a v Milimani High School [2019] KEELRC 1726 (KLR)", Case Analysis (2019). Cause No. 474 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1726/eng@2019-04-29

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