Joseph Kimani Kigotho v Diani Flowers & Landscaping Ltd [2019] KEELRC 1865 (KLR)

The letter of 15 March 2013 called for explanations to specified allegations but did not indicate the explanations were part of a disciplinary process that could end in dismissal; they could have been routine audit or investigative. Although the Claimant may have known the allegations, the process did not meet the mandatory threshold of section 41(1) and (2), which requires hearing and considering representations before summary dismissal.

Because the dismissal failed the mandatory procedural fairness test, the Court did not examine substantive fairness under sections 43 and 45. However, it noted that evidence of the Claimant incorporating a company with a name similar to a Respondent Director's to compete in the tender was unrebutted, informing the refusal of compensation.

The Respondent's Managing Director admitted under cross-examination that an internal reconciliation by the Accountant showed the Claimant was owed US $ 14,090. The Respondent's attempt to disown the reconciliation on the basis of a further audit failed because the further reconciliation was not filed within the window for filing and exchange of documents.

The Claimant was entitled as of right to salary up to the date of dismissal. No records were produced showing the February 2013 salary was paid, establishing breach of contract, and salary up to 15 March 2013 was computed and allowed.

The Claimant had no formal contract at separation but was paid by the month, so pay in lieu of notice equivalent to one month's salary was allowed under section 36 read with section 44(1) of the Employment Act, 2007.

When the hearing date was fixed on 16 November 2018 the Respondent's advocate was aware the counsel handling the brief had left the firm. It was also not the Respondent's first application for adjournment, so the request was declined, with reasons to be given in the judgment.