Dinah Buluma v Church of God East Africa & another [2019] KEELRC 2406 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of reason and fairness of procedure for termination
Termination was both substantively and procedurally unfair; the employer set the Claimant up for failure by deploying her as project accountant knowing she had no accountancy qualifications, in violation of sections 41, 43 and 45 of the Employment Act.
The Claimant served diligently as a social worker for nine years. The employer knew she had no accounting qualification when promoting her. When she explained her shortcomings and enrolled for an accounting course, the employer accepted the explanation and reinstated her, only to later terminate her for the same performance lapses. The court held the employer should have deployed her to work she was capable of doing rather than terminating her for poor performance in a position she could not effectively serve.
Quantum of compensation
Claimant awarded the equivalent of ten months' salary under section 49 of the Employment Act, plus one month's salary in lieu of notice and arrears for August 2010.
The court considered the Claimant's nine years of diligent service, the further three years in an impossible position, mental suffering, loss of future earnings and career growth, and found she did not contribute to her dismissal as she was presented a fait accompli. Relying on David Gichana Omuya v Mombasa Maize Millers Ltd and Anthony Mkala Chitavi v Malindi Water & Sewerage Co Ltd, ten months' salary was appropriate.
Counter claim for alleged misappropriation of Kshs.37,953
Counter claim dismissed as unproved; the allegation was never raised during the disciplinary process and no particulars of loss were given.
The show cause letters and the Claimant's responses never raised misappropriation of funds. The Claimant was reinstated and then terminated on the same allegations, amounting to double jeopardy. The statement of defence made only a bare claim of impropriety without indicating how much money was allegedly lost or how, and the respondent offered no proof on a balance of probabilities.
Legal principles established
#- There is an implied term that an employer deploys an employee to work he/she is qualified to do; terminating an employee set up to fail in a position she was not qualified for is unlawful and unfair.
- An employer must take into account a reasonable explanation given by an employee rather than push the employee to a fait accompli.
Court orders
#- 1.Kshs.283,160 being equivalent of 10 months salary in compensation
- 2.Kshs.28,316 in lieu of notice
- 3.Arrear salary for August 2010 Kshs.28,316
- 4.Total award Kshs.339,792
- 5.Interest at court rates from date of judgment in respect of (a) above and from date of filing suit in respect of (b) & (c) above till payment in full
- 6.Respondent to pay costs of the suit
- 7.Counter claim dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45 and 49 of the Employment Act applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dinah Buluma v Church of God East Africa & another [2019] KEELRC 2406 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2406/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.