Peter Barasa Wepukhulu v Nodor (K) EPZ Limited [2019] KEELRC 2496 (KLR)
The bottom line
#A Kenyan court ruled an employer acted unfairly by firing a worker without written notice or a hearing, awarding five months' pay.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination
Termination was procedurally unfair for want of written notice and a hearing
Section 35(1)(c) requires written notice for monthly-paid employees and section 41 requires an opportunity to make representations. The Claimant testified he was suspended and then simply handed a termination letter on 22 May 2013 without notice or hearing, and this uncontroverted evidence was not rebutted by the Respondent. The court therefore found procedural unfairness made out.
Whether substantive fairness under sections 43 and 45 needed examination
Not necessary, procedural unfairness having been established
Having concluded that the termination breached the procedural requirements of notice and hearing, the court declined to interrogate whether the employer had valid reasons for termination under sections 43 and 45, as the finding of procedural unfairness sufficed to ground the remedy of compensation.
Quantum of compensation
Equivalent of 5 months gross wages awarded
The court considered the Claimant's approximately 5 years of service and applied the length of service as the key factor in fixing compensation at 5 months' gross wages, noting the gross monthly wage of Kshs 12,592/- and that one month's wage in lieu of notice had already been paid through the May 2013 pay slip.
Legal principles established
#- A monthly-paid employee is entitled to written notice of termination under section 35(1)(c) of the Employment Act, 2007
- Section 41 of the Employment Act requires an employee be afforded an opportunity to make representations before termination
- An employee contributing to NSSF is not eligible for service pay under section 35(5) & (6)
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.Award of compensation equivalent to 5 months gross wages at Kshs 62,960/-
- 3.Costs of Kshs 30,000/- to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Barasa Wepukhulu v Nodor (K) EPZ Limited [2019] KEELRC 2496 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2496/eng@2019-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.