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ELRCPartially AllowedCause No 896 of 2016· [2021] KEELRC 740 (KLR)

Josphat Mukuna Amasa v Complete Solutions Insurance Brokers Limited [2021] KEELRC 740 (KLR)

Employment and Labour Relations Court
14 October 2021
2,508 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent as a senior underwriter from 1st October 2013 on a gross salary of Kshs. 44,000/-, was summarily dismissed by letter dated 23rd June 2015 on grounds of non-performance. He claimed the dismissal was wrongful, unfair and discriminatory, allegedly occurring amid a hostile work environment after he fell ill with paranoid psychosis in March 2015. The Respondent filed a response asserting the Claimant absconded duty and that the termination was justified, but did not attend the hearing despite proof of service; the case proceeded ex parte on 3rd August 2021. The court framed three issues: validity of reasons for termination, whether the dismissal was unlawful, discriminatory, malicious or unfair, and entitlement to reliefs. Citing Rika J and Odunga J on uncontroverted evidence, the court held the Respondent proved no valid reason for termination, as the defence of absconding and the alleged warning letter were unsubstantiated. It further held that section 41 of the Employment Act requires a hearing even in summary dismissal, which did not occur, rendering the termination unfair and unlawful. However, discrimination and malice were not proved since the medical condition was not cited as a ground of termination. On reliefs, the court awarded compensatory damages of six months' gross salary (Kshs. 264,000/-) considering the roughly two years of service, one month's notice pay (Kshs. 44,000/-), interest at court rates, a certificate of service under section 51, and costs to the Claimant. Claims for twelve months' compensation, two years' leave pay and two years' severance pay were dismissed, severance being available only on redundancy under section 40.

Key legal issues

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01

Whether there were valid and justifiable reasons for termination

Holding

No valid reason was proved; the defence of absconding was unsubstantiated and the alleged non-performance was unsupported by any evaluation or warning letter

Reasoning

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.

p. 3
02

Whether the dismissal was unlawful, discriminatory, malicious or unfair

Holding

Termination was unfair and unlawful for breach of section 41 of the Employment Act; claims of discrimination and maliciousness failed for want of proof

Reasoning

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.

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03

Whether the Claimant is entitled to the reliefs sought

Holding

Entitled to 6 months' salary compensation, one month's notice pay, certificate of service and costs; leave and severance claims dismissed

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.Declaration that the Respondent's termination of the Claimant's employment vide the letter dated 23rd June 2015 was unfair and unlawful
  2. 2.Compensatory damages of 6 months' gross salary (6 x Kshs. 44,000/-) totalling Kshs. 264,000/-, subject to statutory deductions
  3. 3.Notice pay of Kshs. 44,000/- (one month's salary), subject to statutory deductions
  4. 4.Interest on the sums at court rates from the date of judgment until payment in full
  5. 5.Issuance of a certificate of service under section 51 of the Employment Act
  6. 6.Costs of the suit borne by the defendant (Respondent)

Authorities

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Legislation

  • Employment Actsection 41(2)
  • Employment Actsection 41
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 49(1)(c)
  • Employment Actsection 40
  • Employment Actsection 51

Cases cited (6)

  • Kenya Union of Domestic, Hotels Educational Institutions, Hospitals and Allied Workers v Charles Waithaka Gogo t/a Apple Bees Pub and Restaurant
    (2013)eKLR
  • Linus Nganga Kiongo v Town Council of Kikuyu
  • Motex Knitwear Mills Limited
    Milimani HCC 834/2002
  • Autar Sign Bahra & Another v Raju Govindji
    HCC 548 of 1998
  • Johnson Kaingu v Breeze Point
    (2013)eKLR
  • Mark Wafula v Board of Management Friends Secondary School Kibisi
    (2018)eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act)

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, "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.