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ELRCPartially AllowedMemorandum of Claim dated 8th January 2015, filed 16th January 2015· [2020] KEELRC 1436 (KLR)

Emily Wawira Njogu v Benchmark Distributors Limited (Cause 39 of 2015) (Employment and Labour) [2020] KEELRC 1436 (KLR)

Employment and Labour Relations Court
6 March 2020
MOMAUREEN ONYANGO
1,226 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, employed from 2011 as a Distribution Representative and later transferred to Kayole Branch, was summarily dismissed on 21st October 2014 following a shortage of Kshs.4,000 at the shop and a dispute with the Sales and Distribution Manager. She claimed unfair dismissal, seeking a declaration that the summary dismissal was unlawful, terminal dues of Kshs.61,710 (one month per year for three years), general damages, and costs. The Respondent denied unfair dismissal, asserting it paid her terminal dues which she acknowledged, and contended the dismissal was for absence from duty and refusal to attend meetings, not the lost funds. The court framed two issues: whether the dismissal was unfair, and whether the Claimant was entitled to remedies. It found the Claimant never returned to work after 13th September 2014 despite the Respondent's attempts to reach her by phone, text messages and through her brother, giving the Respondent no option but to terminate; the dismissal was thus substantively justified. However, the Respondent acted in a 'mediocre way' by relying on phone calls, texts and emissaries instead of inviting her to a hearing by letter, breaching procedural fairness. The court converted the summary dismissal to normal termination and awarded one month's salary in lieu of notice of Kshs.20,570. No compensation or terminal dues were awarded because the Claimant caused the situation. The Respondent was ordered to pay 50% of taxed costs.

Key legal issues

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01

Whether the summary dismissal was unfair

Holding

Substantively justified but procedurally deficient; reduced to normal termination with one month's pay in lieu of notice

Reasoning

The Claimant never returned to work after the altercation of 13th September 2014 despite attempts by phone, text messages and through her brother to reach her, giving the Respondent no option but to terminate. However, the Respondent failed to invite her to a hearing by letter, breaching procedural fairness. The court therefore converted the summary dismissal to normal termination and awarded one month's salary in lieu of notice, while denying compensation because the Claimant caused the situation.

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02

Whether the Claimant was entitled to compensation for unfair dismissal

Holding

No compensation awarded

Reasoning

Because the Claimant herself was responsible for the situation that led to the termination of her employment by refusing to return to work or attend meetings, the court found she was not entitled to compensation under section 45 of the Employment Act.

p. 3

Legal principles established

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  • Fair termination requires both substantive justification and procedural fairness
  • An employer relying on phone calls, texts or emissaries fails to properly invite an employee to a disciplinary hearing; the invitation should be by letter

Court orders

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  1. 1.Summary dismissal reduced to normal termination
  2. 2.Respondent to pay the Claimant one month's salary in lieu of notice of Kshs.20,570
  3. 3.Respondent to pay Claimant's costs at only 50% as taxed costs

Authorities

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Legislation

  • Employment Actsection 45(1)(2) and (4)
  • Unnamed regulationsRegulation 10(2)

Cases cited (1)

  • Walter Ogal Anuro v. Teacher Service Commission
Jurisdiction invoked
Employment and labour relations jurisdiction over unfair summary dismissal under the Employment Act

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, "Emily Wawira Njogu v Benchmark Distributors Limited (Cause 39 of 2015)  (Employment and Labour) [2020] KEELRC 1436 (KLR)", Case Analysis (2020). Memorandum of Claim dated 8th January 2015, filed 16th January 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1436/eng@2020-03-06

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