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ELRCPartially AllowedCause No 705 of 2016· [2020] KEELRC 264 (KLR)

Catherine Wawira Ndwiga v Board of Trustees, Starehe Girls’ Centre (Cause 705 of 2016) (Employment and Labour) [2020] KEELRC 264 (KLR)

Employment and Labour Relations Court
6 November 2020
MOMaureen Onyango
3,580 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent from 16th September 2010, first as office assistant, was terminated by letter dated 12th April 2016 on grounds of refusing to follow instructions by declining to type a mathematics draft examination paper. She sued for unfair and unlawful termination, seeking compensation, notice pay, severance, gratuity, unpaid salary, leave days, commuter allowance, maternity pay, damages and a certificate of service. The respondent, in its reply, justified the dismissal as summary dismissal for wilful neglect under Section 44(4) of the Employment Act, but failed to attend the hearing despite a consent date; its case was closed and the claimant's uncontroverted evidence and submissions considered. The court framed two issues: whether the termination was unfair and whether the claimant was entitled to remedies. It held that the refusal to type the examination paper amounted to insubordination, giving the respondent a valid reason, since the claimant admitted the refusal and did not prove the alleged instructions permitting her to decline late exam papers. However, no evidence of a disciplinary hearing was availed, so the termination breached the mandatory procedural requirements of Section 41 and was unfair. Applying Walter Ogal Anuro v Teachers Service Commission, both substantive justification and procedural fairness must coexist. On remedies, the court awarded four months' salary (Kshs.101,316) as compensation under Section 49, notice pay of Kshs.25,329, gratuity of Kshs.126,645 per the CBA, Kshs.10,716.12 for eleven days worked, Kshs.7,793.54 for eight pending leave days and Kshs.39,000 commuter allowance - a total of Kshs.310,800. Severance was refused (no redundancy), the maternity pay claim failed on proof and limitation, and aggravated damages were dismissed for want of proof. The respondent was ordered to issue a certificate of service; the claimant was awarded costs and interest from the date of judgment.

Key legal issues

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01

Whether the reason for termination - refusal to type the mathematics draft examination - was a valid reason

Holding

Yes; the refusal amounted to insubordination justifying termination, since the claimant admitted the refusal and did not prove the alleged instructions against accepting late exams

Reasoning

The claimant's appointment letter included typing of examinations and any other duties assigned by her supervisor. No evidence of any change in the job description was availed, and the claimant did not produce the alleged Director's office instructions excusing late exam papers. Her admitted refusal to type the mathematics draft paper therefore constituted insubordination, giving the respondent a valid reason under Section 45(2).

p. 4
02

Whether the procedure followed in terminating the claimant's employment was fair

Holding

No; the termination violated Section 41 of the Employment Act as there was no evidence of a disciplinary hearing

Reasoning

Although a show cause letter was issued and answered, no minutes or mention of a disciplinary hearing were availed. The claimant also raised the absence of a hearing in her appeal. Procedural fairness requires an employee be heard before termination; absent evidence of a hearing, the termination failed the mandatory requirements of Section 41 and was unfair notwithstanding the valid reason.

p. 4
03

What remedies flow from the finding of unfair termination

Holding

Four months' salary as compensation under Section 49, notice pay, gratuity per the CBA, salary for days worked, leave days and commuter allowance; certificate of service; severance, maternity leave claim and aggravated damages refused

Reasoning

The court assessed compensation under Section 49 at four months' gross salary of Kshs.25,329. Notice pay was awarded under Sections 36 and 49(1) since no evidence of payment was tendered. Gratuity and commuter allowance were grounded on admissions in the termination letter. Severance was refused as the termination was not redundancy; the maternity pay claim failed on proof and limitation, and exemplary damages for want of proof.

p. 5

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness; failure of either renders the termination unfair under Section 45(2) of the Employment Act
  • An employer must avail evidence of a disciplinary hearing to demonstrate procedural fairness under Section 41
  • Burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent in the total sum of Kshs.310,800.00 comprising 4 months' salary as compensation for unfair termination (Kshs.101,316), one month's salary in lieu of notice (Kshs.25,329), gratuity (Kshs.126,645), salary for 11 days worked (Kshs.10,716.12), 8 pending leave days (Kshs.7,793.54) and commuter allowance (Kshs.39,000)
  2. 2.The Respondent to issue the Claimant with a Certificate of Service forthwith
  3. 3.The claimant is awarded costs of the suit
  4. 4.Interest shall accrue at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment ActSection 45(2)
  • Employment ActSection 47(5)
  • Employment ActSections 41 and 45
  • Employment ActSection 49
  • Employment ActSection 49(1)
  • Employment ActSections 36 and 49(1)
  • Employment ActSection 40
  • Employment ActSection 51
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Scientific Research International Technical & Allied Workers Union v Kenya Agricultural Research Institute & Another
    (2013) eKLR
  • Kenfreight (E.A) Limited v Benson K. Nguti
    (2016) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Daniel Kiplagat Kipkeibut v Smep Deposit Taking Micro Finance Limited
    (2016) eKLR
  • National Bank of Kenya v Samuel Nguru Mutonya
    (2019) eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause No. 823 of 2010
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute of unfair termination of employment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Catherine Wawira Ndwiga v Board of Trustees, Starehe Girls’ Centre (Cause 705 of 2016)  (Employment and Labour) [2020] KEELRC 264 (KLR)", Case Analysis (2020). Cause No 705 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/264/eng@2020-11-06

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