Collins Tembo v Awanad Enterprises Limited & another [2021] KEELRC 1714 (KLR)
The bottom line
#A Kenyan court ruled an employee's sacking unfair because the employer never gave him a chance to defend himself, awarding him Kshs. 278,833 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was lawful and fair
The termination was substantively and procedurally unfair. The stated reason was failure to take instructions from the CEO, but the Claimant was never given a chance to respond to the charges, contrary to the procedural fairness requirement.
Section 43 requires the employer to establish a valid reason, discharged by notifying the employee of the charges and allowing a response - the nexus with Section 41 procedural fairness. Here the Claimant was not given any chance to respond; had he been heard, he would have explained why the assignment was not done. The Court also inferred he was a good employee from the employer's own recommendation letter. In an undefended claim, the only conclusion was unfair termination.
Whether the Claimant was entitled to the remedies sought
Partially. Six months' salary in compensation, one month's notice pay, 19 days' May 2017 salary and five years' leave pay were awarded; severance pay, monthly savings and holiday allowance claims failed.
Compensation was assessed at six months' salary taking into account the Claimant's length of service and the Respondents' unlawful and unfair conduct. Notice pay and days worked were awarded as claimed. Leave pay succeeded because the Respondents, who bore the obligation, produced no leave records to the contrary. Severance pay lacked a basis, and savings and holiday allowance were not proved.
Legal principles established
#- Section 43 of the Employment Act places the burden on the employer to establish a valid reason for termination, discharged through notifying the employee of the charges and allowing a response, which links to the procedural fairness requirements of Section 41.
- Termination without affording the employee an opportunity to respond is procedurally unfair and attracts compensation.
- In the absence of leave records to the contrary, a claim for leave pay succeeds.
Court orders
#- 1.Judgment entered in favour of the Claimant and against the 1st and 2nd Respondents jointly and severally for Kshs. 278,833, comprising 6 months' salary in compensation (Kshs. 150,000), 1 month's salary in lieu of notice (Kshs. 25,000), salary for 19 days in May 2017 (Kshs. 15,833) and leave pay for 5 years (Kshs. 87,500)
- 2.The award to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimant to be issued with a certificate of service
- 4.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (s. 43 and s. 41 applied); specific constitutional/statutory invocation not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Collins Tembo v Awanad Enterprises Limited & another [2021] KEELRC 1714 (KLR)", Case Analysis (2021). Cause No 400 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1714/eng@2021-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.