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ELRCPartially AllowedELRC Cause (Kisumu), Statement of Claim filed 26th September 2016· [2021] KEELRC 331 (KLR)

Paul Ngei Kisilu v Astrazeneca Pharmaceuticals Limited [2021] KEELRC 331 (KLR)

Employment and Labour Relations Court
11 November 2021
3,676 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 ruled AstraZeneca unfairly dismissed a long-serving manager, awarding him a year's salary plus notice pay and costs.

What this practically means

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Executive summary

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The Claimant, employed from 1998 and holding the position of Office Manager at the time of his dismissal, sued the Respondent seeking reinstatement, a declaration that his dismissal was wrongful and unfair, gratuity, notice pay, 12 months' compensation, an annual bonus, payment for the remainder of his contract, exemplary and general damages, and costs. The Respondent defended the summary dismissal on grounds of gross negligence of duty following poor performance, citing failed tasks such as forex reconciliation and car tracker administration, and contending that proper procedure was followed. The court framed three issues: whether the dismissal was unfair, entitlement to reliefs, and costs. On procedure, the court held that the Claimant knew the charges and hearing details and that interim orders barring the hearing had been discharged, so the Section 41 procedural fairness test was met. However, on substantive justification, the court found the Performance Improvement Plan imposed just two days before the show cause letter was a tool to set the Claimant up for failure, and that the Respondent's hurried conclusion of the disciplinary process while the matter was pending in court showed lack of good faith. The dismissal was declared wrongful, unlawful and unfair. Reinstatement failed for want of jurisdiction, the Claimant having been out of employment over three years. Gratuity, bonus, remainder-of-term payment and damages claims were dismissed. The court awarded a declaration, 12 months' salary as compensation (Kshs. 6,159,444.84), one month's notice pay (Kshs. 513,287.07), costs and interest.

Key legal issues

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01

Whether the summary dismissal was procedurally fair

Holding

The procedure was fair because the Claimant knew the date, time and venue of the hearing, was informed of the charges, and the court orders barring the hearing had been lifted

Reasoning

The court examined Section 41 of the Employment Act. The Claimant received a show cause notice listing the grounds, was notified of the hearing, declined to attend on grounds the matter was in court, but the interim orders had been discharged. The Respondent therefore proceeded ex parte properly and the procedure met the Section 41 fairness test.

p. 4
02

Whether there was substantive justification for the dismissal

Holding

The dismissal lacked substantive justification and was wrongful, unlawful and unfair

Reasoning

The PIP was imposed on 14th September 2016 and a show cause letter issued just two days later, suggesting the PIP was used to set the Claimant up for failure. The Respondent hurriedly concluded the disciplinary process while the matter was pending in court, showing lack of good faith. The conduct fell short of the reasonable responses a reasonable employer would adopt.

p. 4
03

Whether the Claimant was entitled to compensation and notice pay

Holding

Maximum compensation of 12 months' salary awarded under Sections 49 and 50, plus one month's salary in lieu of notice

Reasoning

The Claimant served for 18 years, his age had advanced and prospects of comparable employment had dwindled, and he had a reasonable expectation of serving to retirement at 60. These factors supported maximum compensation. Notice pay was awarded because there was no evidence the notice period was paid. Salary was computed at Kshs. 513,287.07 per the pay slips.

p. 5

Legal principles established

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  • Fairness of a summary dismissal requires both fair procedure and valid and fair reasons for the dismissal
  • A Performance Improvement Plan is a corrective tool and not a conduit to dismiss an employee
  • In summary dismissal, the right to be heard is unassailable and absolute

Court orders

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  1. 1.A declaration that the dismissal of the Claimant is wrongful and unfair
  2. 2.Payment of 12 months' salary equivalent in compensation for unfair dismissal at Kshs. 6,159,444.84/=
  3. 3.One-month salary in lieu of notice at Kshs. 513,287.07/=
  4. 4.Costs of the suit and interest at court rate until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 49(4)
  • Employment Act, 2007Section 50
  • Employment and Labour Relations Court ActSection 12(3)

Cases cited (6)

  • CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona
    (2015) eKLR
  • David Githinji Kibuge v New Kenya Co-operative Creameries Ltd
    (2019) eKLR
  • Sotik Tea Estates Limited v Kenya Plantaions and Agricultural Workers Union
    (2017) eKLR
  • Caroline Wanjiru Luzze v Nestle Equatorial Africa Region Limited
    (2016) eKLR
  • Michael Obudho Amondi v United Millers
    (2016) eKLR
  • Alphonce Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12(3); Employment Act, 2007 Sections 41, 43, 45, 47(5), 49 and 50

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, "Paul Ngei Kisilu v Astrazeneca Pharmaceuticals Limited [2021] KEELRC 331 (KLR)", Case Analysis (2021). ELRC Cause (Kisumu), Statement of Claim filed 26th September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/331/eng@2021-11-11

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