Lillians Nabwile Wafukho v Gs1 Kenya Limited [2020] KEELRC 544 (KLR)
The bottom line
#A Kenyan court found GS1 Kenya's summary dismissal unfair because the employee wasn't told the charges against her or invited with a colleague, awarding Kshs.1.93 million.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
The Respondent lacked a valid and justified reason; the dismissal letter was vague and the audit findings were not communicated to the Claimant for explanation.
The dismissal letter cited a forensic audit generally, without identifying what aspect of the report or conduct led to the dismissal. There was no notice to show cause on record. The invitation to meet the auditor lacked a time and date, and the issue was not raised at the hearing, denying the claimant a chance to respond. The warning letters and missing personal file did not form the basis of the termination.
Procedural fairness of the termination
The procedure failed the fairness test: the charges were not communicated and the claimant was not told of the meeting's purpose or her right to representation.
Although an email of 21st June 2017 invited the claimant to meet the Board on 23rd June 2017 and minutes showed she attended and made representations, the contemplated charges were never communicated. The invitation did not disclose the meeting's purpose or the right to a colleague's presence, contravening natural justice and sections 41 and 45(1) of the Employment Act. As the systems audit report formed the basis of termination, she should have been informed beforehand.
Admissibility of the systems audit report
The objection to production by a non-maker was inconclusive, having been raised only in submissions without objection at trial.
The claimant argued the report was inadmissible because the auditor did not author it and she could not cross-examine him. The court held the objection came too late since the document was produced at trial without objection, following the estoppel principle in Crown Bus Services relied on by the respondent.
Entitlement to reliefs
Notice pay, compensation of four months' salary and gratuity awarded; untaken leave claim and declaration of inhumane dismissal refused.
Having found the dismissal unfair, the court awarded one month's notice pay per the contract, four months' compensation under section 49(4) considering length of service and termination circumstances, and gratuity at 25% of annual salary for two years per the HR Manual clause K.4(b). The leave claim failed for want of particularization, and no declaration of inhumane dismissal was made.
Legal principles established
#- An employer must communicate to an employee the charges contemplated against them and inform them of the right to be accompanied, failing which the termination fails the procedural fairness test under sections 41 and 45 of the Employment Act.
- A dismissal letter whose stated reasons are vague does not establish a valid and justified reason for termination.
Court orders
#- 1.A declaration that the Claimant's summary dismissal was unlawful and unfair.
- 2.Kshs.182,000.00 awarded as one month's salary in lieu of notice.
- 3.Kshs.728,000.00 awarded as four months' salary compensation for unfair termination under section 49(4) of the Employment Act.
- 4.Gratuity awarded in the sum of Kshs.1,020,000.00 being 25% of annual salary for the 2 years worked.
- 5.Respondent directed to issue a certificate of service compliant with section 51(2) of the Employment Act.
- 6.Judgment entered for the claimant in the total sum of Kshs.1,930,000.00 with costs and interest at court rates from the date of judgment.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 45, 49 and 51(2))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lillians Nabwile Wafukho v Gs1 Kenya Limited [2020] KEELRC 544 (KLR)", Case Analysis (2020). Cause No 2135 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/544/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.