Paul Ngei Kisilu v Astrazeneca Pharmaceuticals Limited [2021] KEELRC 331 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally fair
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
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.
Whether there was substantive justification for the dismissal
The dismissal lacked substantive justification and was wrongful, unlawful and unfair
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.
Whether the Claimant was entitled to compensation and notice pay
Maximum compensation of 12 months' salary awarded under Sections 49 and 50, plus one month's salary in lieu of notice
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.
Legal principles established
#- 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
#- 1.A declaration that the dismissal of the Claimant is wrongful and unfair
- 2.Payment of 12 months' salary equivalent in compensation for unfair dismissal at Kshs. 6,159,444.84/=
- 3.One-month salary in lieu of notice at Kshs. 513,287.07/=
- 4.Costs of the suit and interest at court rate until payment in full
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.