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ELRCDismissedNot stated in judgment· [2021] KEELRC 290 (KLR)

Maria Mbala Skock v Coast Star Academy Limited [2021] KEELRC 290 (KLR)

Employment and Labour Relations Court
3 December 2021
BOByram Ongaya
954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a cleaner's unfair termination claim because she refused a chance to apologise, showing employees can lose cases through their own conduct.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2009 as a cleaner, sued claiming she was summarily terminated on 30.06.2015 after the head teacher alleged the toilets were not well brushed, without prior notice. She alleged violations of Articles 41 and 47(1) of the Constitution and ILO Convention 158, and breaches of sections 41, 43 and 45 of the Employment Act, 2007, and claimed notice pay, leave pay for 7 years, underpayment, and 12 months' compensation totalling Kshs. 131,448.00, plus a declaration that the termination was unfair. The respondent admitted the employment and termination but asserted the claimant was dismissed for arrogance, rudeness and poor performance after she refused an opportunity to apologise at a disciplinary hearing, invoking sections 41 and 44 of the Act. The claimant testified; the respondent called her supervisor (RW1) and the head teacher (RW2). The Court found the parties were in a contract of service with a last gross monthly pay of Kshs. 9,000. It held the respondent established a genuine reason for termination under sections 43 and 45, that the procedure was fair as the claimant was offered an opportunity to apologise and continue working, and that her refusal showed unwillingness to improve. The claimant was found to be the author of her dismissal, contributing 100%. Notice pay was declined under section 44; the leave claim failed because she took leave during school holidays and raised no grievance; the underpayment claim failed because the Agricultural Industry Order did not apply to a school and the wage orders could not operate retrospectively. The memorandum of claim was dismissed with each party bearing own costs.

Key legal issues

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01

Fairness of the termination

Holding

Termination was fair and for a genuine reason; the claimant was given an opportunity to explain and apologise and refused

Reasoning

The claimant was dismissed because the toilets she cleaned were smelly. She was summoned and asked to explain and apologise and continue working, but arrogantly refused. The Court credited the respondent's evidence, found a genuine reason under sections 43 and 45, held the procedure fair, and found the claimant solely responsible for her dismissal, disentitling her to compensation.

p. 2
02

Notice pay under section 44

Holding

Notice pay declined as the respondent was entitled to dismiss with a shorter notice under section 44

Reasoning

Having found the claimant contributed fully to her dismissal and that the respondent acted under section 44, the Court declined the claim for one month's notice pay of Kshs. 10,954.

p. 2
03

Leave pay

Holding

Leave claim failed; claimant took leave during school holidays and raised no grievance during employment

Reasoning

RW2 testified that school closed during school and public holidays and the claimant took leave then, there being no policy for pay in lieu. The Court saw no reason to doubt this and noted no grievance was raised throughout the employment.

p. 2
04

Underpayment claim

Holding

Underpayment claim failed; the wage orders relied on applied to the Agricultural Industry and could not operate retrospectively

Reasoning

The claimant relied on the Regulation of Wages (Agricultural Industry) (Amendment) Order 2015 operational from 01.05.2015 for underpayments from May 2013 to April 2014. The Court held the Order could not apply retrospectively and, the claimant having worked in a school, the Agricultural Industry Order could not apply; the 2015 General Order could not apply retrospectively either.

p. 2

Legal principles established

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  • An employer establishing a valid and genuine reason for termination and offering the employee an opportunity to explain/apologise satisfies sections 43 and 45 of the Employment Act
  • An employee's refusal of an opportunity to apologise and improve constitutes contributory fault justifying dismissal and defeat of compensation
  • Wage order instruments cannot be applied retrospectively to periods before their operational dates

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the memorandum of claim
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47(1)
  • Employment Act, 2007sections 41, 43, 44, 45
  • Regulation of Wages (General) (Amendment) Order No. 197 of 2013
  • Regulation of Wages (Agricultural Industry) (Amendment) Order 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute (Article 41 and 47(1) of the Constitution and Employment Act, 2007 invoked)

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, "Maria Mbala Skock v Coast Star Academy Limited [2021] KEELRC 290 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/290/eng@2021-12-03

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