Mary Wangui Njoroge v Lathy Flora Kenya Limited [2022] KEELRC 542 (KLR)
The bottom line
#A Kenyan court cut a dismissed employee's award to just one month's notice pay because she refused reasonable chances to return to work.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for the summary dismissal
The dismissal was substantively justified as the claimant's negligence in entrusting export flower labelling to a student she had trained for only two weeks occasioned the respondent loss.
The court found as fact that flowers were mislabelled and returned from Europe, costing the respondent the customer and freight charges. The claimant admitted the mistake in her show-cause response. Given her roughly six years' experience, entrusting the sensitive labelling task to an under-trained student was negligent, giving the employer valid and fair reasons related to conduct, and its sanction fell within the band of reasonableness.
Procedural fairness under sections 41 and 45(2)(c) of the Employment Act
The dismissal was procedurally flawed because the respondent only obtained a written explanation and did not hold a disciplinary hearing or allow a fellow employee or union representative.
Although RW1 asserted a fair hearing was accorded, there was no evidence of minutes or an invitation to a disciplinary hearing. Following Postal Corporation of Kenya vs Andrew K. Tanui, compliance with section 41 is mandatory; the claimant's written explanation alone did not fulfil its requirements, rendering the procedure employed flawed.
Mitigation and remedies
The claimant failed to mitigate by refusing reinstatement under the conciliation agreement and declining Kshs 50,000, so no compensatory damages were awarded; only one month's notice pay.
Under section 49(4)(l) the court must consider any failure by the employee to reasonably mitigate losses. The conciliation agreement of 27 January 2015 provided for reinstatement with one month's salary, but the claimant demanded full salary for the entire period out of employment as a condition of resuming duty. Having an opportunity to mitigate and refusing it, she forfeited compensatory damages; the flawed procedure nevertheless earned her notice pay.
Legal principles established
#- An employer must comply with section 41 of the Employment Act in mandatory terms; a written explanation alone, without a disciplinary hearing, does not satisfy the minimum standards of fair procedure.
- The fairness of a dismissal is tested on two limbs: substantive justification and procedural fairness.
- Where an employer has valid reasons but a flawed procedure, the termination may be deemed a normal termination warranting notice pay only.
- An employee has a duty to mitigate losses, which the court must consider under section 49(4)(l) in awarding remedies.
Court orders
#- 1.The claimant is awarded the sum of Kshs 12,000 being one month's salary in lieu of notice
- 2.The award shall attract interest at court rates from the date of Judgment until payment in full
- 3.Each party shall bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act and Labour Relations Court Act; the judgment itself invokes Article 159(2)(d) and Article 48 of the Constitution only in respect of virtual delivery)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wangui Njoroge v Lathy Flora Kenya Limited [2022] KEELRC 542 (KLR)", Case Analysis (2022). Cause No 1161 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/542/eng@2022-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.