Josphat Mukuna Amasa v Complete Solutions Insurance Brokers Limited [2021] KEELRC 740 (KLR)
The bottom line
#A Kenyan employer that dismisses an employee without a hearing and skips the court hearing was ordered to pay six months' salary in compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid and justifiable reasons for termination
No valid reason was proved; the defence of absconding was unsubstantiated and the alleged non-performance was unsupported by any evaluation or warning letter
The termination letter cited non-performance, which ought to have been supported by a performance evaluation or supervisor's report. The alleged warning letter was not produced and no document supported the defence of absconding. The Respondent, though served, stayed away from the hearing, leaving the claimant's evidence uncontroverted. Following Rika J and Odunga J, the court presumed no valid reason existed and the procedure was unfair.
Whether the dismissal was unlawful, discriminatory, malicious or unfair
Termination was unfair and unlawful for breach of section 41 of the Employment Act; claims of discrimination and maliciousness failed for want of proof
Section 41(2) of the Employment Act obliges an employer to hear and consider an employee's representations before terminating on grounds of misconduct or poor performance, and this applies even to summary dismissal. No hearing took place. However, the letter of termination did not cite the medical condition and no evidence proved discrimination or malice, so those heads failed.
Whether the Claimant is entitled to the reliefs sought
Entitled to 6 months' salary compensation, one month's notice pay, certificate of service and costs; leave and severance claims dismissed
Section 49(1)(c) of the Employment Act entitled the Claimant to compensation for unfair termination. Considering the approximately two years of service and his failure to disclose his employment status, 6 months' gross salary was fair. Notice pay was due as he was dismissed without notice. Leave failed for inconsistency and lack of proof; severance failed as there was no redundancy.
Legal principles established
#- An employer must show valid reasons for termination and a fair process; where the employer keeps away from proceedings, the presumption is that no valid reason existed and the procedure was not fair.
- The hearing requirement in section 41 of the Employment Act applies even in cases of summary dismissal.
- A party who fails to adduce evidence leaves its pleadings as mere statements of fact and the opposing evidence uncontroverted.
Court orders
#- 1.Declaration that the Respondent's termination of the Claimant's employment vide the letter dated 23rd June 2015 was unfair and unlawful
- 2.Compensatory damages of 6 months' gross salary (6 x Kshs. 44,000/-) totalling Kshs. 264,000/-, subject to statutory deductions
- 3.Notice pay of Kshs. 44,000/- (one month's salary), subject to statutory deductions
- 4.Interest on the sums at court rates from the date of judgment until payment in full
- 5.Issuance of a certificate of service under section 51 of the Employment Act
- 6.Costs of the suit borne by the defendant (Respondent)
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Mukuna Amasa v Complete Solutions Insurance Brokers Limited [2021] KEELRC 740 (KLR)", Case Analysis (2021). Cause No 896 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/740/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.