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ELRCPartially AllowedCause No 235 of 2015· [2022] KEELRC 149 (KLR)

Miriam Atieno Ongango v Gilanis Supermarket Limited [2022] KEELRC 149 (KLR)

Employment and Labour Relations Court
24 March 2022
HWHellen Wasilwa
2,310 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 blocked a worker over a name mismatch, without a fair disciplinary process, was ordered to pay compensation for unfair dismissal.

What this practically means

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Executive summary

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The claimant, employed verbally by the respondent supermarket in 1990 as a general worker and given a written contract in 2012, was asked in 2013 to provide a KRA PIN after her salary attracted PAYE. Her lost national identity card was replaced by one bearing her earlier name (Neli Atieno Adera) and number, while her employment documents bore the name Miriam Atieno Ongango. She explained the variation by affidavit, but the respondent refused to allow her to work until she produced documents in matching names, and she never returned to work; the respondent asserted she absconded. The claimant died in 2016 and her son, as administrator, was substituted. The court framed three issues: whether the claimant was dismissed, whether the dismissal was fair, and the remedies due. The court found that the respondent's unreasonable insistence on documents, despite the explanation by affidavit, amounted to dismissal. It further found the dismissal unfair: there was no fair disciplinary process and no formal dismissal letter. Applying Section 45(2) of the Employment Act, the court held the termination unfair and unjustified. The court awarded one month's salary in lieu of notice (Kshs. 12,000), pending leave of Kshs. 5,538.50, and 10 months' salary (Kshs. 120,000) as compensation for unfair termination, less statutory deductions, plus costs and interest from the date of judgment. Reinstatement and the higher quantum sought were not granted.

Key legal issues

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01

Whether the claimant was dismissed

Holding

The court found the claimant was dismissed by the respondent

Reasoning

The union complained of dismissal and the respondent replied that it had no objection to retaining the claimant but required her NSSF, NHIF and ID in the name Neli Atieno Adera. The court held the insistence was unreasonable given the discrepancies had been explained by affidavit dated 17/7/2013 and should have been investigated. Since the respondent admitted it could not allow the claimant to serve without the demanded documents, this amounted to dismissal.

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02

Whether the dismissal was fair and justified

Holding

The dismissal was unfair and unjustified

Reasoning

The respondent never subjected the claimant to a fair disciplinary process and never formally served a dismissal letter spelling out the reasons. The court applied Section 45(2) of the Employment Act, under which a termination is unfair unless the employer proves a valid and fair reason related to conduct, capacity, compatibility or operational requirements, and fair procedure. No such proof was offered.

p. 4
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Remedies

Holding

The court awarded notice pay, pending leave and 10 months' compensation

Reasoning

Though the claimant sought reinstatement and up to 12 months' compensation plus substantial alternative benefits, the court found for the claimant and awarded one month's salary in lieu of notice, pending leave of 6 months as prayed, and 10 months' salary as compensation for the unlawful and unfair termination, less statutory deductions, plus costs and interest.

p. 4

Legal principles established

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  • A termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure
  • An employer who unreasonably refuses to retain an employee despite a discrepancy in her names having been explained by affidavit is treated as having dismissed her

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 12,000
  2. 2.Pending leave of 6 months as prayed of Kshs. 5,538.50
  3. 3.10 months' salary as compensation for unlawful and unfair termination (10 x 12,000 = Kshs. 120,000), less statutory deductions
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 75

Cases cited (3)

  • Antony Mkala Chitavi V Malindi Water and Sewage Co. Limited
  • Paul Mumo Kitavi Vs ACME Containers Limited
    [2019] eklr
  • Standard Chartered Bank Ltd V Intercom Services Ltd & 4 Others
    [2004] 2KLR 183
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act, 2007

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, "Miriam Atieno Ongango v Gilanis Supermarket Limited [2022] KEELRC 149 (KLR)", Case Analysis (2022). Cause No 235 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/149/eng@2022-03-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.