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ELRCPartially Allowednull (not stated in the judgment)· [2020] KEELRC 1242 (KLR)

Esther Wanjiru Maina v BOM Karatina DEB Primary School [2020] KEELRC 1242 (KLR)

Employment and Labour Relations Court
24 April 2020
NMNzioki wa Makau
2,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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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, a long-serving employee (17 years) of the Respondent school earning Kshs. 15,000/- per month, sued for unfair and unlawful summary dismissal. She was accused of gross misconduct by a letter dated 29 May 2017, replied by letters of 9 and 17 June 2017, attended a Board of Management disciplinary meeting on 4 July 2017, wrote an apology, and was nonetheless summarily dismissed without benefits by letter dated 21 July 2017 on nine grounds. The Respondent defended the dismissal as procedurally sound under Sections 41, 44(4)(a) and (d) of the Employment Act and raised the non-service of statutory notice, threatening a preliminary objection. Three defence witnesses testified to the abusive language, insubordination and the BOM's decision. The court held that although the employer may have had reasons for dismissal, the grounds in the dismissal letter were largely new matters never put to the Claimant at the show-cause or disciplinary stage, denying her the statutory opportunity to be heard; the dismissal was therefore unfair under Section 45. The court cancelled the summary dismissal, reduced it to normal termination with notice, and awarded one month's notice pay (Kshs. 15,000/-), six months' compensation (Kshs. 90,000/-), costs and interest. Execution was automatically stayed for 14 days under the Chief Justice's COVID-19 Practice Directions. The maximum 12 months' compensation and the pleaded leave allowance were not awarded.

Key legal issues

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01

Procedural fairness in summary dismissal under Sections 41 and 45 of the Employment Act

Holding

The summary dismissal was unlawful and unfair because the reasons in the dismissal letter were never raised at the show-cause or disciplinary stage

Reasoning

The show-cause letter of 29 May 2017 and the disciplinary meeting of 4 July 2017 dealt with limited allegations, principally insubordination for which an apology had been rendered. The dismissal letter of 21 July 2017 raised nine grounds, many of them new and never put to the employee. The employee was therefore denied the opportunity to defend herself against the accusations, contrary to the Employment Act, rendering the dismissal unfair.

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02

Consequence of an unfair summary dismissal

Holding

The summary dismissal without benefits was cancelled and reduced to normal termination with notice, entitling the employee to terminal benefits, notice pay and compensation

Reasoning

Because the process fell short of the statutory requirements, the court did not reinstate the summary dismissal for gross misconduct. Instead it converted the dismissal into a normal termination requiring notice, attracting notice pay and compensation under Section 49, with interest and costs.

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Legal principles established

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  • Where an employee is dismissed on grounds that were never put to her at the show-cause stage or the disciplinary hearing, the dismissal is unfair under Section 45 of the Employment Act
  • An employer may demonstrate a reason for dismissal but the dismissal remains unfair where the employee was not accorded an opportunity to defend herself against the accusations

Court orders

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  1. 1.Reduction of the summary dismissal to normal termination with notice
  2. 2.One month's salary as notice – Kshs. 15,000/-
  3. 3.6 months salary as compensation – Kshs. 90,000/-
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest at court rates on the sums in (b) and (c) above from date of judgment till payment in full
  6. 6.Execution of the judgment automatically stayed for 14 days in line with the Chief Justice's COVID-19 Practice Directions

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 44(4)(a) and (d)
  • Employment ActSection 41(2)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 74
  • Civil Procedure RulesOrder 21 Rule 1 and 3 (waived)
  • Cap 39 and Cap 40 (Laws of Kenya)not specified

Cases cited (3)

  • Susan Mbithe Kitumu v The BOM DEB Primary School Karatina
    [2018] eKLR
  • Kazungu Kenga Katana v Ready Consultancy Co. Limited
    [2015] eKLR
  • Gilbert Kiprono Sang v Ukwala Supermarket Limited
    [2017] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; suit for unfair and unlawful dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Esther Wanjiru Maina v BOM Karatina DEB Primary School [2020] KEELRC 1242 (KLR)", Case Analysis (2020). null (not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1242/eng@2020-04-24

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