Korir v Bunson Travel Services Limited (Cause 160 of 2018) [2022] KEELRC 4134 (KLR)
The bottom line
#A Kenyan court ruled that signing a discharge voucher doesn't stop an employee from suing over unfair termination, awarding six months' salary.
What this practically means
#Executive summary
#Key legal issues
#Effect of the discharge voucher on the claim
The discharge voucher did not bar the claim; the employee's statutory right to dispute the fairness of termination survives execution of a discharge voucher.
The court contrasted the claimant's position (signing only accepted what was owed) with the respondent's reliance on Costal Brothers v Kimathi Mithika. Holding that a voucher does not override section 35(4)(a) of the Employment Act, the court held the right to dispute the lawfulness or fairness of termination does not cease or abate upon execution of the voucher, permitting inquiry into fairness.
Whether termination for poor performance was procedurally fair and for valid reasons
Termination was unfair: no hearing, notice or representations were afforded, and no records of performance assessment were produced, contrary to sections 41, 43 and 45.
Section 41(1) requires the employer to explain reasons and hear the employee before terminating on grounds of poor performance. The respondent pleaded no effort to allow a hearing before the termination letter; the meeting of 2 August 2017 had no record. Following National Bank of Kenya v Samuel Nguru Mutonya and Professional Clean Care v Muthoka, the court found the process contrary to mandatory provisions and unfair.
Remedies
Six months' salary as compensation (Ksh510,000) and a certificate of service were awarded; the 12 months sought was not granted.
Under sections 45 and 49 compensation is due upon a finding of unfair termination. Taking the claimant's gross monthly salary of Ksh85,000, the court considered six months' salary appropriate. A certificate of service was ordered under section 51 of the Employment Act.
Legal principles established
#- A discharge voucher executed by an employee does not override the employee's right to challenge the lawfulness or fairness of termination under section 35(4)(a) of the Employment Act.
- An employer citing poor performance must follow due process: notify the employee, explain the reasons, and hear representations before termination.
- Where an employer produces no record of a contested meeting, the court will believe the employee's account.
Court orders
#- 1.A declaration that the claimant's employment was terminated by the respondent unfairly
- 2.Compensation awarded at Ksh 510,000 (6 months' salary)
- 3.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 49, 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Korir v Bunson Travel Services Limited (Cause 160 of 2018) [2022] KEELRC 4134 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4134/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.