Nisha Nileshbhai Bhavsar v Kensalt Limited [2022] KEELRC 517 (KLR)

The Respondent's counsel conceded before cross-examination that there was no hearing prior to termination. Section 41 of the Employment Act mandates notification and hearing before termination on grounds of misconduct. The concession, together with the absence of any show-cause process, made procedural unfairness inevitable.

The termination letter gave no reasons. The allegations raised in the Statement of Response and in the witness statement of the Administration Manager were not stated in the termination letter, were not communicated to the Claimant, and were unsupported by evidence on cross-examination. They amounted to conjecture and could not constitute valid reasons.

The pay slips described salary as basic while contracts variously described it as gross or 'basic gross'. The Court held basic and gross are antithetical terms and contract ambiguity is resolved in favour of the employee. House allowance at 15% of basic was therefore payable; the monthly house allowance of Kshs. 23,241 was added to basic salary of Kshs. 305,000 for computation of compensation and notice.

The Claimant served 8 years with a clean record, no warning letters, expected to serve until 2020, and did not contribute to the termination. With no hearing conceded and no valid reason established, the termination was 'most unfair', warranting the statutory maximum under the Employment Act, computed at monthly gross of Kshs. 328,241.

Although the termination letter was dated 14th August 2018 and termination was expressed to take effect from 13th August 2018, the Claimant received the letter on 15th August 2018. The Court held the effective date of termination is the date the employee is made aware of the decision, awarding half a month's salary for August 2018 at Kshs. 164,120.