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ELRCPartially AllowedCause No. 72 of 2018· [2020] KEELRC 1777 (KLR)

Dinnah Namalwa Simiyu v Microsoft Africa Limited [2020] KEELRC 1777 (KLR)

Employment and Labour Relations Court of Kenya
23 January 2020
MMM. Mbaru
1,775 words in judgment
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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 as a storekeeper from 26 March 2011, sued the respondent after her employment ended in May 2017, claiming terminal dues including April 2017 salary, notice pay, May wages, seven years' annual leave, public holiday overtime, a November 2016 salary deduction and transport refund, plus compensation. She testified she was handed her dismissal via surrender of office keys on 3 May 2017 without notice or hearing. The defence contended the dismissal letter of 2 May 2017 was withdrawn following a meeting on 17 May 2017 attended by the claimant and her pastor, after which the claimant refused to return to work. The court found that although the summary dismissal letter was withdrawn, the respondent then failed to invoke the summary dismissal procedure under sections 44(4)(a) and 41(2) when the claimant stayed away, rendering the termination unfair under section 45(2). However, invoking section 45(5), and noting unchallenged warnings for poor performance and indiscipline in 2014, 2015 and 2016, the court declined compensation, holding an award would reward gross misconduct. On the documentary claims, the court applied the employer's record-keeping duty under sections 10(6), (7) and 20: April 2017 wages of Ksh.20,000 and 3 days' May wages of Ksh.2,000 were awarded absent proof of payment; pay in lieu of five years' untaken leave was awarded at Ksh.54,316.50. Claims for public holiday overtime, the November 2016 deduction and transport were declined. Judgment was entered for the claimant for Ksh.76,316.50 with each party bearing own costs. Judgment delivered at Nakuru on 23 January 2020 by M. Mbaru, J.

Key legal issues

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01

Whether termination was unfair

Holding

Although the initial dismissal letter was withdrawn after a hearing on 17 May 2017, the respondent failed to invoke the summary dismissal procedure under sections 44(4)(a) and 41(2) when the claimant failed to return to work, resulting in unfair termination under section 45(2)

Reasoning

The court found both parties at fault: the claimant ceased work on 4 May 2017 despite attending the 17 May meeting, while the respondent took no lawful action against her absence. Failure to follow the statutory procedure meant the termination could not stand as fair, attracting liability under section 45(2).

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02

Whether compensation should be awarded despite unfair termination

Holding

No compensation awarded because of the claimant's unchallenged record of warnings for indiscipline and poor performance

Reasoning

Section 45(5) requires the court to consider the employee's conduct record. The claimant did not challenge warning letters dated 3 February 2014, 15 May 2015 and 21 November 2016. In the circumstances, an award would reward gross misconduct.

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03

Proof of payment of wages and leave

Holding

In the absence of employer records proving payment of April 2017 salary and grant of annual leave, the claims succeed on the merits

Reasoning

Section 10(6) and (7) and section 20 oblige the employer to keep records and issue itemised pay statements. The respondent asserted April wages were paid but produced no proof. Leave for 5 of the 6 years was unproven as taken, entitling the claimant to pay in lieu computed at Ksh.15,559.95 basic wage and 21 leave days per year.

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Legal principles established

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  • Termination of employment must be for a fair reason and based on due process; breach of statutory procedure renders termination unfair under section 45(2)
  • The employer bears the duty to keep work records under section 10(6) and (7); in the absence of records, claims are addressed on the merits
  • Under section 45(5) of the Employment Act, an employee's record of indiscipline may disqualify them from compensation for unfair termination

Court orders

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  1. 1.Judgment entered for the claimant against the respondent
  2. 2.Wage for April 2017 ksh.20,000
  3. 3.Wage for May 2017 ksh.2,000
  4. 4.Unpaid leave ksh.54,316.50
  5. 5.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 45(5)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 10(6) and (7)
  • Employment Act, 2007section 28
  • Employment Act, 2007section 20
  • Employment Act, 2007section 19
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

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, "Dinnah Namalwa Simiyu v Microsoft Africa Limited [2020] KEELRC 1777 (KLR)", Case Analysis (2020). Cause No. 72 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1777/eng@2020-01-23

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