Peris Muriithi v Boulangerie and Company Limited [2022] KEELRC 506 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee without a hearing or valid proof of misconduct is unlawful, awarding two months' salary as compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved a valid and fair reason for terminating the Claimant's employment
The Respondent failed to prove a valid reason. The alleged SMS evidence was not attributable to the Claimant, no certificate of electronic evidence was produced, and there was no proof of any parallel business activity.
The Respondent relied on an SMS print out allegedly sent by the Claimant, but no telephone number was captured on the print out and no evidence directly connected the Claimant to it. No certificate of electronic evidence was produced in court. Even if the message was sent, it did not prove she was selling products or carrying on a parallel business, and the Managing Director could simply have warned her of a potential conflict of interest.
Whether the termination procedure complied with Section 41 of the Employment Act
The procedure was not followed: the termination letter gave no reasons, the Claimant was not called for a disciplinary hearing, and no notice to show cause or warning was issued.
The court found no documents showing a warning or notice to show cause between the alleged SMS of 20th May 2016 and the dismissal on 5th July 2016. The evidence was that the Claimant was summoned, asked to hand over keys and phone, and given a termination letter the same day. The Respondent's claim of an invited disciplinary meeting was unsupported by evidence, breaching Section 41 and natural justice.
What compensation was appropriate for the unlawful termination
The court awarded the equivalent of two months' salary, Kshs. 250,000/=, taking into account the short duration of service.
Although the Claimant sought the maximum twelve months' compensation under the Employment Act, the court exercised its discretion considering she had served less than five months, and held that two months' worth of salary was fair compensation. Costs were awarded to the Claimant as costs follow the event, with interest from the date of judgment until payment in full.
Legal principles established
#- For a termination to pass the fairness test, an employer must demonstrate both substantive justification and procedural fairness, and must prove the reasons for termination under Sections 43 and 45 of the Employment Act.
- An employer contemplating termination must expressly and unambiguously inform the employee of the contemplated action, and summary dismissal without a hearing contravenes Section 41(2) of the Employment Act.
- It is mandatory that an employee be invited to a disciplinary hearing, informed upfront of the allegations, and advised of the right to be accompanied by a fellow employee or shop steward.
Court orders
#- 1.Declaration that the termination of the Claimant's employment was wrongful and unlawful
- 2.Award of compensation equivalent to two months' gross salary, Kshs. 250,000/=, for unlawful termination
- 3.Costs of the suit awarded to the Claimant
- 4.Interest on the decretal amount from the date of judgment until full payment
- Jurisdiction invoked
- Employment and Labour Relations Court established under Article 162(2) of the Constitution (claim brought under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peris Muriithi v Boulangerie and Company Limited [2022] KEELRC 506 (KLR)", Case Analysis (2022). Cause No. 2206 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/506/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.