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ELRCPartially AllowedCause No. 221 of 2016· [2019] KEELRC 1935 (KLR)

Josephine Naliaka Simiyu v Mercy Coprs [2019] KEELRC 1935 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
14 February 2019
3,963 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 ruled that even when a fixed-term contract expires, an employer must still give a suspended employee a fair hearing and update them on investigations.

What this practically means

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Executive summary

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The claimant, employed by Mercy Corps on fixed-term contracts as a Field Officer managing the Yes Youth Can programme in Trans Nzoia, was suspended on 22nd April 2015 on half pay over allegations of involvement in the theft of Ksh.724,887.00 from a sub-grantee, the County Bunge Forum. Her last contract expired on 30th April 2015 after notice of non-renewal dated 30th March 2015. She claimed she was never told the outcome of investigations, was labelled a thief in an internal email, and sought half pay, damages for constructive and unfair dismissal, and extensive defamation damages including an order for a formal apology. The defence was that employment ended by effluxion of time, she was cleared of wrongdoing by an investigations committee on 2nd December 2015, her terminal dues were paid and a Certificate of Service issued. The court framed four issues: when employment ended; whether termination was unfair; whether the claimant was defamed; and what remedies were due. It held the contract lawfully expired after a month's notice of non-renewal, and that suspension is not termination. However, the claimant's rights to a fair hearing, to reasons and to the outcome of investigations under sections 41, 43 and 45 of the Employment Act survived the contract's expiry; the employer's failure to secure due process amounted to an unfair labour practice and unfair termination, warranting compensation under section 49. The defamation claim failed because the impugned email was internal communication within ongoing investigations, not a false and malicious publication. Constructive dismissal was not made out. Judgment was entered for the claimant with compensation of two months' gross salary (Ksh.140,000.00) and costs; all other reliefs were refused.

Key legal issues

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01

When employment ended

Holding

Employment ended on 30th April 2015 by lapse of the fixed-term contract after lawful notice of non-renewal dated 30th March 2015

Reasoning

The parties were regulated by fixed-term contracts, the last ending 30th April 2015. Notice of non-renewal issued a month in advance, which was lawful under sections 10(2)(e) and 3(c) of the Employment Act. The 10th May 2016 letter directing clearance for terminal dues was not a termination notice, as employment had already ended.

p. 3
02

Whether there was unfair termination of employment

Holding

Yes - unfair labour practice and unfair termination found despite the contract lapsing, because the claimant's rights to a hearing and to the outcome of investigations were not secured

Reasoning

Although the contract lawfully expired, the claimant was suspended on 22nd April 2015 and remained in limbo while investigations dragged on past the contract's expiry, without communication of the outcome. The rights to a fair hearing under sections 41, 43 and 45 of the Act survive the end of the contract. Failure to accord due process rendered the termination unfair, attracting compensation under section 49.

p. 4
03

Whether the claimant was defamed by the respondent

Holding

No - the impugned email was internal communication within an investigation and not defamatory

Reasoning

The email of 30th September 2015 was copied only to internal staff of the respondent, all involved in the investigations already known to the claimant. Internal investigations and inquiries are not false, malicious publications intended to injure. The claimant was cleared on 2nd December 2015 and issued a Certificate of Service; an employer need not issue a reference letter.

p. 5
04

Whether the remedies sought are due

Holding

Compensation of two months' gross salary (Ksh.140,000.00) awarded for unfair termination; all other heads of relief refused

Reasoning

Under section 45(5)(a) of the Act the court considered the employer's procedure: the claimant was taken through a circuit without clarity, forced to make repeated demands, and the investigations commenced only after her contract lapsed, causing strain and anxiety. Compensation of two months' gross salary at the last earned rate of Ksh.70,000.00 was appropriate, plus costs. Defamation-related damages and constructive dismissal damages were refused.

p. 5

Legal principles established

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  • Upon suspension, an employee is entitled to a fair hearing under section 41 of the Employment Act regardless of the duration or impending expiry of the contract
  • Expiry of a fixed-term contract does not absolve an employer of the duty to secure procedural and substantive justice where the employee was under suspension
  • Suspension is not termination of employment
  • An employer is not legally obligated to issue a letter of recommendation; only a Certificate of Service is mandatory under section 51 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant with compensation of two (2) months' gross salary based on the last earned salary of Ksh.70,000.00, totalling Ksh.140,000.00
  2. 2.Costs of the suit awarded to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment cause)

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, "Josephine Naliaka Simiyu v Mercy Coprs [2019] KEELRC 1935 (KLR)", Case Analysis (2019). Cause No. 221 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1935/eng@2019-02-14

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