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ELRCPartially AllowedMemorandum of Claim dated 1st September 2015, filed 8th September 2015· [2019] KEELRC 1986 (KLR)

Caroline Kirema Kananu v Karibuni Rafiki Beach Resort [2019] KEELRC 1986 (KLR)

Employment and Labour Relations Court
21 March 2019
LNLINNET NDOLO
1,258 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 firing a bereaved chef without following fair procedure was unlawful and awarded her compensation, costs, and interest.

What this practically means

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Executive summary

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The Claimant, employed as a Chef by the Respondent from 18th July 2011 at a monthly salary of Kshs. 20,000, claimed unlawful and unfair termination following the death of her father on 20th March 2015. Her request for 10 days off for burial arrangements was refused; she was told she could have only 6 days and would have to work evenings. She left on 21st March 2015, returned on 1st April 2015, and was verbally dismissed. The Respondent maintained she deserted her job and counterclaimed a set-off of Kshs. 20,000 and Kshs. 5,000 advanced salary. The court held that requiring a bereaved employee to continue working was unreasonable and most uncaring, and that an employer alleging desertion must reach out to the employee with notice that the job was at risk, which the Respondent did not do. The termination was found unjustified and procedurally flawed. The court awarded 10 months' salary in compensation, one month's notice pay, half of the March 2015 salary, and prorata leave for 2015, totalling Kshs. 233,500 with interest at court rates from the date of judgment. Claims for overtime, off days and public holidays were dismissed as unproved, as was the Respondent's set-off claim. The Claimant was awarded the costs of the case.

Key legal issues

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01

Whether the termination was unlawful

Holding

The Respondent terminated the Claimant's employment without justifiable cause and in violation of due procedure; the desertion defence failed because the employer made no effort to reach out to her

Reasoning

The claimant's father died and she sought 10 days off; the Respondent would allow only 6 days and required her to keep working evenings. The court held requiring a bereaved employee to keep working was unreasonable and uncaring. Even if she deserted, the employer had a duty to contact her and warn her that her job was at risk, which it did not do, so the desertion defence was unavailable.

p. 3
02

Remedies entitlement

Holding

Claimant awarded 10 months' salary compensation, one month's notice pay, half March salary, and prorata leave; overtime, off days and public holiday claims dismissed as unproved

Reasoning

In assessing compensation the court considered the claimant's length of service and the respondent's callous conduct. The claimant admitted receiving half her March 2015 salary and taking leave in 2013 and 2014, limiting the leave claim to prorata leave for 2015, earlier claims being statute barred under Section 90 of the Employment Act.

p. 3

Legal principles established

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  • An employer alleging desertion must reach out to the employee and put them on notice that their job is on the line

Court orders

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  1. 1.10 months' salary in compensation of Kshs. 200,000
  2. 2.1 month's salary in lieu of notice of Kshs. 20,000
  3. 3.Half salary for the month of March 2015 of Kshs. 10,000
  4. 4.Prorata leave for 2015 of Kshs. 3,500
  5. 5.Total award of Kshs. 233,500 with interest at court rates from the date of judgment until payment in full
  6. 6.The Claimant will have the costs of the case

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, "Caroline Kirema Kananu v Karibuni Rafiki Beach Resort [2019] KEELRC 1986 (KLR)", Case Analysis (2019). Memorandum of Claim dated 1st September 2015, filed 8th September 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1986/eng@2019-03-21

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