Salome Gathoni Njiru v Misky Investment Limited [2022] KEELRC 386 (KLR)
The bottom line
#A Kenyan court confirmed that short-service employees can sue for unfair termination, but this cashier won reduced compensation because she stayed silent about workplace irregularities.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant, on probation and with less than thirteen months' service, could bring a claim of unfair termination
Yes; she had served out her six-month probation by the time of termination, and the service-length restrictions in Sections 42(1) and 45(3) of the Employment Act are unconstitutional.
The appointment letter dated 30th October 2015 engaged the Claimant from 1st November 2015 on six months' probation; by termination on 31st August 2016 she had completed probation, so Section 42(1) did not apply. In any event Section 42(1) was declared unconstitutional in Monica Munira Kibuchi. Section 45(3)'s thirteen-month threshold was declared unconstitutional by Lenaola J in Samuel G. Momanyi; the Court of Appeal in Nation Media Group did not reverse that holding, so it retains persuasive force and this Court is persuaded by it.
Whether the dismissal was substantively justified
Yes; the Claimant admitted awareness of missing Mpesa cash and scratch cards but failed to report the matter, contributing to the Respondent's loss.
An audit revealed Kshs. 150,000 in Mpesa cash and airtime scratch cards worth Kshs. 50,000 missing. Although the Claimant denied receiving the show cause letter, her letter of 15th June 2016 showed knowledge of the irregularity. Her failure to escalate the matter to management contributed to the loss, satisfying the substantive justification requirement under Section 43 of the Employment Act.
Whether the dismissal was procedurally fair
No; the Respondent breached the mandatory procedural fairness requirements of Section 41 of the Employment Act.
Beyond the show cause letter and the Claimant's written response, the Respondent did not afford the Claimant an opportunity to be heard as required by Section 41, including explanation of reasons in a language she understands and hearing representations. Further, the Claimant was placed on suspension between the show cause letter and the termination letter without recourse to due process. The termination was therefore procedurally unfair.
Legal principles established
#- Section 42(1) of the Employment Act was declared unconstitutional by a three-judge bench of the ELRC and cannot bar a probationer's claim for unfair termination.
- Section 45(3) of the Employment Act, which conditions the right to complain of unfair termination on thirteen months' continuous service, is unconstitutional as it discriminates against a category of employees.
- A termination is tested against both substantive justification and procedural fairness; an employee's failure to escalate a known irregularity at the workplace can constitute substantive justification for dismissal.
Court orders
#- 1.Judgment entered for the Claimant: 3 months' salary in compensation of Kshs. 40,320
- 2.1 month's salary in lieu of notice of Kshs. 13,440
- 3.Prorata leave for 9 months of Kshs. 7,056
- 4.Total award of Kshs. 60,816 with interest at court rates from the date of judgment until payment in full
- 5.Judgment to apply to Causes No 2398 of 2016, 2399 of 2016 and 2407 of 2016 pursuant to the order of 20th February 2017
- 6.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salome Gathoni Njiru v Misky Investment Limited [2022] KEELRC 386 (KLR)", Case Analysis (2022). Cause No. 2397 of 2016 (implied; judgment applies to Causes No 2398 of 2016, 2399 of 2016 and 2407 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/386/eng@2022-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.