Rose Sang v Siginon Group Limited [2020] KEELRC 990 (KLR)

The Employment Act provides reinstatement as a remedy for unfair termination but requires the court to weigh factors in Section 49(4) including employee contribution to termination, practicability of reinstatement, the common law bar on specific performance of service contracts, and length of service. These can only be ascertained after hearing evidence. Interim reinstatement is therefore only granted in very clear and exceptional circumstances, and the applicant did not meet that threshold.

Applying Giella v Cassman Brown, the court considered the three limbs. On the first limb, the central contention - whether the grounds for termination were those in the notice to show cause or those in the termination letter - was a matter on which the parties had no mutual interpretation, and could only be resolved after hearing evidence. The hearing and procedural steps before termination were not contested, as both sides accepted a show cause letter, response and disciplinary hearing occurred.

On the second limb, the applicant did not show any injury that could not be adequately remedied by damages. In her claim she had sought reinstatement or, in the alternative, 12 months' gross salary compensation and 3 months' salary in lieu of notice, which itself demonstrated that her loss was compensable in monetary terms.

The claimant occupied a very senior position whose roles could not be left vacant pending trial. The court reasoned that if the claimant persuades the court at full trial that she is entitled to reinstatement, there would be no obstacle to reinstating her then, and it would be the respondent's problem to resolve the position of any person hired in the interim. Preserving the vacancy was therefore unnecessary.