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ELRCPartially AllowedCause No 2283 of 2016· [2021] KEELRC 193 (KLR)

Joyce Mukolwe v Mustek East Africa Limited [2021] KEELRC 193 (KLR)

Employment and Labour Relations Court of Kenya
8 December 2021
OKOcharo Kebira
7,064 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 as a Business Development Assistant from March 2014 until 4 April 2016, sued the Respondent alleging unfair, unlawful termination and constructive dismissal, claiming twelve months' compensation, refunds of unlawful salary deductions, notice pay, service pay, unpaid leave and a certificate of service. The Respondent denied the allegations, asserting poor performance, proper job descriptions and lawful termination. Its sole witness (the General Manager) admitted there were no appraisal records before the Court, no signed or bank-authenticated proof of the alleged April payment, no documentary proof of warnings emails, and that the amendment letter showed no consultation with the Claimant. The Respondent also filed no submissions despite directions. The Court found no reason for the termination was ever given or discernible; the section 41 procedure was not followed, rendering the termination procedurally unfair; and the Respondent failed to prove a valid and fair reason under sections 43 and 45, rendering the summary dismissal substantively unfair. The Court declined to determine the peripheral issues of job description, contract variation and the Managing Director's conduct. The Claimant was awarded eight months' compensation (Kshs. 280,000) based on the contractual salary of Kshs. 35,000, one month's notice pay, proved deductions of Kshs. 18,423 and Kshs. 11,666.70 for ten untaken leave days, with interest and costs. Claims for twelve months' compensation, the full deduction figure, service pay and full leave entitlement were not granted. Judgment entered on 8 December 2021.

Key legal issues

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01

Reason for termination

Holding

No reason for the termination was given to the Claimant prior to or in the termination letter, and none could be discerned from the Respondent's pleadings or evidence.

Reasoning

The termination letter was silent on reasons; the Respondent's general denial and its witness's evidence never expressly linked the alleged poor performance to the termination. The witness's attack on the letter's authenticity failed because he confirmed the HR Manager's signature and official stamp, and the Claimant's uncontroverted account of receiving it while the MD was abroad stood.

p. 6
02

Procedural fairness

Holding

The termination was procedurally unfair as the mandatory section 41 procedure was not followed.

Reasoning

Section 41 requires an employer contemplating termination to explain the reasons to the employee in the presence of a colleague or representative and to consider representations. The Respondent's witness led no evidence that this statutory procedure was followed; combined with the absence of reasons in the termination letter, procedural unfairness was inevitable.

p. 6
03

Substantive fairness

Holding

The summary dismissal was substantively unfair; the Respondent proved no valid or fair reason.

Reasoning

The Respondent did not demonstrate any conduct amounting to fundamental breach justifying summary dismissal under section 44(3). Even if poor performance was asserted, the employer gave no evidence of a performance measurement policy, appraisals communicated to the employee, or measures to address poor performance, as required by the high standard of proof in such cases.

p. 8
04

Appropriate salary for computation of compensation

Holding

The contractual salary of Kshs. 35,000, not the net figure of Kshs. 48,820 from the final pay slip, was the correct basis for computation.

Reasoning

The March 2016 pay slip was a final pay slip incorporating leave pay, notice pay and advance pay totalling Kshs. 89,736 gross; the Kshs. 48,820 was a post-deduction net figure. Relying on it to claim higher compensation was misleading, so the Court applied the contractual gross salary.

p. 8
05

Unpaid leave

Holding

The Claimant was entitled to 10 untaken leave days (8.5 for 2014 and 2.5 for 2016), valued at Kshs. 11,666.70.

Reasoning

The Respondent's leave application forms did not fully account for 2014 leave (only 11.5 days taken against 21 entitled). For 2015, an application for 1 December 2015 to 7 January 2016 was approved for 24 days and unchallenged, so no 2015 days remained; only a pro-rata 2.5 days accrued for the three months worked in 2016.

p. 9

Legal principles established

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  • Section 41 of the Employment Act prescribes a mandatory procedure before termination, and non-adherence renders the termination unfair.
  • An employer bears the burden under sections 43 and 45 of the Employment Act to prove a valid and fair reason for termination; failure shifts the statutory default implication of unfairness.
  • Termination for poor performance requires a high level of proof, including a performance evaluation policy and measures taken to address the poor performance.
  • Deducting an employee's salary for failure to meet targets set unilaterally amounts to unjustified self-enrichment, deprivation of property, oppression and unfair labour practice.

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was procedurally and substantively unfair
  2. 2.Compensation pursuant to section 49(1)(c) of the Employment Act of Kshs. 280,000
  3. 3.One month's salary in lieu of notice of Kshs. 35,000
  4. 4.Refund of unlawfully deducted salary of Kshs. 18,423
  5. 5.Unpaid leave compensation of Kshs. 11,666.70
  6. 6.Interest on the awarded sums at Court rates from the date of filing the suit till full payment
  7. 7.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 44 (including 44(3) and 44(4))
  • Employment Actsection 35(1)(c)
  • Employment Actsection 49 (including 49(1)(c))
  • Employment Actsection 10
  • Employment Actsection 8

Cases cited (8)

  • National Bank of Kenya vs Samuel Nguru Mutonya
    [2019] eKLR
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    [2017] eKLR
  • Jane Samba Mukala vs Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK) (September, 2013)
  • Carolyne L. Musonye vs Panari Hotel Ltd
    [2017] eKLR
  • James Ang'awa Atanda & 10 Others vs Judicial Service Commission
    [2017] eKLR
  • Meshack Mutilangi vs East Africa Limited
    [2021] eKLR
  • Darius Kiseu Mwamburi vs Cooperative Bank of Kenya Limited
    [2021] eKLR
  • Laws vs London Chronicle Limited
    [1959] 2 ALL.R 285
Jurisdiction invoked
Original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (first-instance memorandum of claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joyce Mukolwe v Mustek East Africa Limited [2021] KEELRC 193 (KLR)", Case Analysis (2021). Cause No 2283 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/193/eng@2021-12-08

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