Abigail Khasoa Simiyu v Britam General Insurance Company Kenya Limited [2020] KEELRC 920 (KLR)
The bottom line
#Kenya's Employment Court awarded a senior manager over KShs 8.5 million because her employer fired her for reasons different from those in the show cause letter.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had valid reasons for termination
The Respondent did not have valid reasons; the reasons at termination did not match those in the show cause letter
Section 43 requires the employer to prove the reasons for termination, being matters it genuinely believed existed at the time. A comparison of the show cause letter and the termination letter showed the reasons were invariably different. The show cause concerned lost logbooks and salvage register issues, while the termination letter cited lack of leadership. The attempt to offer Voluntary Early Retirement also undermined the validity of the stated reasons.
Whether fair procedure under Section 41 was followed
The disciplinary process fell below the requisite standard; the Claimant was not shown to have been heard
Section 41 obliges the employer to explain the reasons and hear the employee's representations before termination. The Minutes produced did not show the Claimant among attendees, she did not sign them, and they were signed after her termination. The meeting of 16/6/2016 discussing her response was held without inviting her. The hearing therefore fell below the standard required by Section 41 of the Employment Act.
Whether the termination was unfair and unjustified under Section 45
The termination was unfair and unjustified, being without valid reasons and without due process
Section 45(2) renders a termination unfair where the employer fails to prove a valid and fair reason and adherence to fair procedure. Having found neither valid reasons nor due process established, the court concluded the termination was unfair and unjustified, entitling the Claimant to remedies including notice pay, leave pay and compensation.
Legal principles established
#- The employer bears the onus of proving valid reasons for termination; failure to do so renders the termination unfair under Section 45
- Where the reasons relied on at termination differ from those in the show cause letter, the employer has not established valid reasons
Court orders
#- 1.3 months' salary in lieu of notice: 733,575.74 x 3 = Kshs. 2,200,727.22
- 2.Payment in lieu of pending 20 leave days: 20/30 x 733,575.74 = Kshs. 489,050.50
- 3.8 months' salary as compensation for unlawful termination: 8 x 733,575.74 = Kshs. 5,868,606
- 4.Total award of Kshs. 8,558,383.72 less statutory deductions
- 5.Pension dues to be paid
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43 and 45 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Abigail Khasoa Simiyu v Britam General Insurance Company Kenya Limited [2020] KEELRC 920 (KLR)", Case Analysis (2020). Cause No 2600 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/920/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.