Wanjuhi v Patrick Shompole t/a Santa Lucia Academy (Cause 1793 of 2017) [2022] KEELRC 20 (KLR)
The bottom line
#A Kenyan court ruled a school unfairly dismissed its cook by suspending her and never finishing the disciplinary process, awarding her Kshs 72,000.
What this practically means
#Executive summary
#Key legal issues
#Whether there was justifiable cause to terminate the claimant's employment
Yes - the respondent had a fair and valid reason based on allegations of verbal and physical assault of pupils, corroborated by parental messages and eyewitness testimony
Sections 43 and 45(2)(a) and (b) of the Employment Act place the burden on the employer to prove valid and fair reasons. The respondent produced screenshots of messages from parents of the affected pupils mentioning the claimant adversely, which she did not contest, plus RW2's testimony that she personally witnessed the assault. Given the claimant's close contact with pupils and the institution's duty of care and reputation, a reasonable employer would take disciplinary action.
Whether the claimant was subjected to a fair procedure
No - the termination was procedurally unfair because the disciplinary process begun by the suspension letter was never concluded and the resumption conditions were unreasonable
Section 45(2)(c) and 41(1) require the employer to prove fair process. Although a suspension letter issued on 8th February 2017, the respondent never responded to the claimant's letter of 8th March 2017 or concluded the process, leaving her in limbo. The requirement to obtain clearance letters with ID copies of both parents of affected children was practically impossible and made resumption almost impracticable. The claimant was thus quietly dismissed without a fair process.
Whether the respondent's counterclaim for one month's salary in lieu of notice for desertion is sustainable
No - the counterclaim is dismissed as there was no desertion
Applying Black's Law Dictionary definition of desertion as willful and unjustified abandonment of duties, the claimant, who had been suspended and had written asking for a way forward, could not be said to have deserted since the respondent knew her whereabouts. The counterclaim was therefore dismissed.
What reliefs the claimant is entitled to
Compensatory damages of five months' gross salary (Kshs 60,000) and one month's notice pay (Kshs 12,000); other heads declined
For procedural unfairness, compensatory damages equivalent to five months' gross salary were awarded considering length of employment and the claimant's conduct leading to her exit. One month's notice pay was awarded. Leave pay, house allowance and food/water allowance claims were declined for want of proof, and because the consolidated salary above minimum wage was presumed to subsume house allowance.
Legal principles established
#- An employer bears the burden of proving the reasons for termination; failure to do so renders the termination unfair
- Where a disciplinary process is commenced by suspension, the employer must bring it to a conclusion; leaving the employee in limbo without a way forward is procedurally unfair
- Desertion requires willful and unjustified abandonment of duties; an employee whose whereabouts the employer knows and who is awaiting direction has not deserted
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.Compensatory damages in the sum of Kshs 60,000.00 being equivalent to 5 months gross salary
- 3.One month's salary in lieu of notice being the sum of Kshs 12,000.00
- 4.Total award of Kshs 72,000.00 with interest at Court rates from the date of Judgment till payment in full
- 5.The counterclaim is dismissed
- 6.The claimant shall have the costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, Sections 41, 43 and 45 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjuhi v Patrick Shompole t/a Santa Lucia Academy (Cause 1793 of 2017) [2022] KEELRC 20 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/20/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.