Phyllis Wairimu Njihia v Amazing Tours and Travel Limited [2019] KEELRC 2508 (KLR)
The bottom line
#A Kenyan court ruled a Tours Manager's dismissal unfair because her employer skipped the mandatory disciplinary hearing and proved no valid reason.
What this practically means
#Executive summary
#Key legal issues
#Procedural and substantive fairness of termination
Termination was unfair because the claimant was not subjected to the disciplinary process required by Section 41 of the Employment Act and no valid reason was proven
Section 41 of the Employment Act provides the procedure for termination while Section 43 requires the employer to prove a valid reason. The respondent filed a response but elected not to call evidence or cross-examine the claimant, so its assertion of non-performance was unsubstantiated. In the absence of a disciplinary hearing and of verifiable performance targets, the termination failed both limbs of the fairness test.
Entitlement to remedies
Claimant awarded one month's pay in lieu of notice, September 2015 salary, refund of Kshs.10,000 deduction, pro-rata leave and 3 months' compensation
Having found the termination unfair, the court declared it unfair and awarded notice pay and accrued salary. The deduction of Kshs.10,000 from August salary was refundable under Section 19(2) of the Employment Act prohibiting deductions as a reward for employment. Compensation was moderated to 3 months' salary given the short 6-month duration of service.
Legal principles established
#- For a termination to be fair there must be both substantive justification and procedural fairness
- An employer must conduct a hearing as part of procedural fairness under Section 41(2) of the Employment Act before terminating employment
Court orders
#- 1.Declaration that the Claimant's termination of employment was unfair
- 2.Salary for September 2015 at Kshs.35,000
- 3.The shortfall on her August salary Kshs.10,000
- 4.Pro-rata leave Kshs.14,135
- 5.Pay in lieu of notice Kshs.35,000
- 6.Compensation Kshs.105,000
- 7.Total judgment of Kshs.199,135
- 8.The respondent shall pay claimant's costs
- 9.Interest at court rates on items (i)-(iv) from date of filing suit and on item (v) from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12; Industrial Court Rules Rule 29(3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phyllis Wairimu Njihia v Amazing Tours and Travel Limited [2019] KEELRC 2508 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2508/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.