Paschal Khatono Mafwiri v Bob Morgan Services Limited [2019] KEELRC 2138 (KLR)
The bottom line
#A Kenyan court ruled an employer unfairly sacked a 16-year employee and must pay him eight months' wages because it proved no valid reason and skipped proper procedure.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The termination was procedurally unfair because the Claimant was not issued with a written notice of termination or show cause notice, and the court could not confirm that the meeting held amounted to a disciplinary hearing.
Section 35(1)(c) of the Employment Act requires written notice of termination at least 28 days in advance unless the case is gross misconduct under section 44. Section 41 prescribes a hearing. The Claimant admitted receiving a dispatch summoning him to head office where he met shop stewards and managers, but the Respondent produced no minutes of that meeting, so the court could not confirm it was a disciplinary hearing. The Respondent's witness admitted this was not summary dismissal but normal termination, yet no written notice issued.
Substantive fairness of the termination
The Respondent did not have valid and fair reasons to terminate the Claimant's services.
Under sections 43 and 45 of the Employment Act, an employer must prove the reasons for termination and that they are valid and fair. The reason given was incitement of staff to reject a restructuring exercise, but no details of the staff allegedly incited were disclosed and none of them were called to testify. Without such evidence, the Respondent failed to discharge the burden of proving valid and fair reasons for the termination.
Compensation for unfair termination
The equivalent of 8 months gross wages was awarded as fair compensation, considering the length of service.
In exercising discretion on compensation, the court considered that the Claimant had served the Respondent for about 16 years. Taking the gross wage for October 2013 of Kshs 20,117/-, the court concluded that the equivalent of 8 months gross wages would be fair compensation, quantified at Kshs 160,936/-.
Legal principles established
#- An employer must issue a written notice of termination or show cause notice at least 28 days in advance unless the case is gross misconduct, and afford the employee a hearing, per sections 35(1)(c) and 41 of the Employment Act
- The employer bears the burden of proving the reasons for termination and that they are valid and fair
- Failure to produce minutes of a purported disciplinary meeting prevents the court from confirming that a disciplinary hearing took place
- A certificate of service is a statutory right of an employee
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair
- 2.Award of compensation of Kshs 160,936/- (equivalent of 8 months gross wages)
- 3.Respondent to issue certificate of service to the Claimant within 15 days
- 4.Claimant to have costs of the Cause
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Cause filed in the Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paschal Khatono Mafwiri v Bob Morgan Services Limited [2019] KEELRC 2138 (KLR)", Case Analysis (2019). Cause No. 320 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2138/eng@2019-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.