Lawrence Sifuna Wekesa v Salsam Enterprises Limited [2020] KEELRC 682 (KLR)
The bottom line
#A Kenyan employer was ordered to pay Kshs. 150,000 because it fired a worker without first warning him or giving him a chance to respond.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was lawful and fair
The termination was unfair; although poor performance and misconduct would be valid grounds if proved, no charges were presented to the Claimant for response prior to termination and no capability hearing was conducted.
The termination letter cited poor performance and misconduct, both valid grounds if proved. However, despite the litany of accusations in the Response, there was no evidence the charges were presented to the Claimant for his response before termination. The Operations Manager confirmed he never issued any warning letter nor called the Claimant to any meeting to discuss performance. The allegations were therefore never tested at the shop floor.
Whether the Respondent was entitled to appropriate the Claimant's notice pay for an alleged loan and lost accessories
The appropriation of the notice pay was unlawful; the loan balance was not proved and there was no legal basis for recoveries on account of the accessories.
The Respondent admitted appropriating the notice pay for an alleged outstanding loan and a surcharge for lost accessories. The Claimant testified he had fully repaid the loan and the Respondent adduced no evidence of any outstanding balance. Since the charges of poor performance and misconduct failed, there was no legal basis for the recoveries, making the appropriation unlawful.
What compensation and remedies the Claimant is entitled to
Five months' salary in compensation plus one month's notice pay, interest, certificate of service and costs; claims for house allowance, rest days, public holidays and gratuity dismissed as unproved.
In fixing compensation the court considered the Claimant's length of service and the Respondent's unlawful conduct. The house allowance claim failed as the Claimant's evidence that he was housed for only three months was unsupported by documents. Rest days, public holidays and gratuity were not proved.
Legal principles established
#- An employee facing termination for poor performance must be made aware of their shortcomings and given reasonable opportunity to improve, and is entitled to a capability hearing under Section 41 of the Employment Act
- In cases of gross misconduct, the employee is entitled to prior notification of the exact charges and adequate opportunity to prepare and present their defence
- A termination where the allegations were never tested at the shop floor is unfair within the meaning of Section 45 of the Employment Act
Court orders
#- 1.Judgment entered in favour of the Claimant for Kshs. 150,000 comprising 5 months' salary in compensation (Kshs. 125,000) and 1 month's salary in lieu of notice (Kshs. 25,000)
- 2.The amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimant to be issued with a certificate of service
- 4.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; Article 159(2)(d) and Article 40 of the Constitution of Kenya cited in the delivery order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawrence Sifuna Wekesa v Salsam Enterprises Limited [2020] KEELRC 682 (KLR)", Case Analysis (2020). Memorandum of Claim dated 1st March 2018 (Cause filed 2nd March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/682/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.