Evans Zimbaso Indege & 8 others v Africa Apparels (EPZ) Limited [2022] KEELRC 833 (KLR)
The bottom line
#A Kenyan court ruled that signing a clearance certificate doesn't stop employees from claiming unfair dismissal, but compensation was limited to one month's salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the clearance certificates discharged the Respondent from further liability
The clearance certificates did not waive the Claimants' rights to pursue further claims because they had no tabulation of entitlements and the Claimants were not seized of all relevant information
The Court applied the principle that discharge vouchers bind parties under freedom of contract but only where the employee freely and willingly executed the voucher with full knowledge. Here the certificates guaranteed payment for February salary only, lacked a tabulation of entitlements, and the evidence showed employees were only told the documents would enable them access February salary. The Court was not persuaded the Claimants understood they were waiving further claims.
Whether the reasons for dismissal were substantiated
The Respondent established on a balance of probabilities a justifiable reason for dismissal - interruption of work on 21st, 24th and 25th February 2015
Applying Section 43(2) of the Employment Act, the Court found that despite the Claimants' denial of a strike, there was an impasse over salary matters and an interruption of work on the relevant dates in which the Claimants were involved. RW1 testified about a go-slow and an address by HR and the shop steward, which the Claimants acknowledged. The Claimants' compressor-pressure explanation was unsubstantiated.
Whether the dismissal complied with Section 41 procedure
The dismissal was procedurally unfair for want of compliance with Section 41
Section 41 prescribes mandatory notification and hearing before termination. The Respondent alleged a disciplinary process but furnished no evidence of notice, attendance, membership of a disciplinary committee, or consideration of representations. RW1 confirmed the process was by word of mouth and that notice was not issued. The haste of the dismissals further rendered the process procedurally defective.
Legal principles established
#- A discharge voucher/clearance certificate cannot absolve an employer from statutory obligations unless it was freely and willingly executed when the employee was seized of all relevant information and knowledge
- Termination of employment must pass both substantive justification and procedural fairness
- Non-compliance with the mandatory provisions of Section 41 of the Employment Act renders a termination procedurally unfair
Court orders
#- 1.Declaration that the Claimants' dismissal was unlawful
- 2.The Claimants except the 5th Claimant are awarded one (1) month's salary in lieu of notice
- 3.The Claimants except the 5th Claimant are awarded the equivalent of one (1) month's salary as compensation for unfair dismissal
- 4.The Claimants have costs of the suit
- 5.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nginga v South Lake Junction Rocky Resort Limited (Employment and Labour Relations Cause 118 of 2018) [2023] KEELRC 1107 (KLR)[2023] KEELRC 1107 (KLR)4 May 2023
- Omondi & 2 others v Hatari Security Guards Limited (Cause 2424 of 2017) [2022] KEELRC 1313 (KLR)[2022] KEELRC 1313 (KLR)14 Jul 2022applied
Cite this brief
#Cite this brief
Caselaw, "Evans Zimbaso Indege & 8 others v Africa Apparels (EPZ) Limited [2022] KEELRC 833 (KLR)", Case Analysis (2022). Memorandum of Claim dated 10th October 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/833/eng@2022-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.