Shijenje v Stephen Gikera & Punit Vadgama t/a Gikera & Vadgama Advocates (Cause E003 of 2020) [2023] KEELRC 351 (KLR)
The bottom line
#A Mombasa court found the dismissal unfair because the employer never gave the employee a hearing, though the employee could not claim full compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was procedurally fair under Sections 41 and 45 of the Employment Act
Termination was unfair; no hearing, no notice to show cause, no opportunity to be heard, and no performance appraisal before termination
Section 41 sets out a mandatory procedure requiring the employer to explain the reasons and hear the employee's representations before termination on grounds of misconduct, poor performance or incapacity. RW-1 conceded there was no appraisal, no notice to show cause, no disciplinary action on record and no appeal. The employer relied only on a termination notice, which cannot substitute for the Section 41 hearing. The Court of Appeal's decision in Kenfright was applied.
Whether the Claimant could claim compensation for unfair termination
Claim for compensation declined because he had worked only ten months, below the thirteen months required by Section 45(3)
Section 45(3) restricts the right to complain of unfair termination to employees continuously employed for not less than thirteen months immediately before termination. The Claimant served from November 7, 2016 to October 4, 2017, only ten months. Despite the declaration of unfairness, the statutory bar defeats the compensation claim.
Whether proper notice under Section 35(1) was given
No proper notice; only 27 days from September 9, 2017 to October 4, 2017, so one month's salary in lieu of notice awarded
The termination letter serving as one month's notice was received on September 8, 2017. Section 35(1) reckons the twenty-eight day period from the day next following the giving of notice, i.e., September 9, 2017. Counting to October 4, 2017 yields twenty-seven days, one day short. The shortfall entitles the Claimant to one month's salary in lieu of notice.
Unpaid leave days
Claim for Kshs 199,768 for 15 unpaid leave days allowed
It was common ground that 15 leave days were unutilised as at May 2017. The Respondent, obliged under Section 74(f) to keep leave records, did not demonstrate that the Claimant took leave thereafter. The claim was therefore allowed.
Unpaid house allowance
Claim for Kshs 503,415 allowed; salary was not consolidated and no payslip showed a house allowance element
The employment contract had no consolidation clause indicating the salary included housing. RW-1 confirmed there was no indication the salary was consolidated and the Respondent did not house the Claimant. Under Section 31(1) and 2(a) the employer must provide housing or a sufficient house allowance; no payslip under Section 20 was produced showing otherwise.
Legal principles established
#- Failure by an employer to comply with the mandatory procedure in Section 41 of the Employment Act renders a termination unfair under Section 45, regardless of the allegations against the employee.
- The reasons for termination must be proved before termination; an employer cannot terminate first and seek to prove allegations afterwards.
- For poor performance, the employer must point out shortcomings and give the employee a reasonable time (two to three months) to improve, with a performance appraisal in which the employee participates.
- Under Section 45(3), only an employee with not less than thirteen months' continuous employment immediately before termination has the right to complain of unfair termination and claim compensation.
- A one-month notice period is reckoned from the day next following the giving of notice in writing.
- The employer bears the obligation under Section 74(f) to keep records of employees' annual leave entitlements, days taken and days due; failure to demonstrate leave taken means the leave claim succeeds.
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.Judgment entered for the Claimant against the Respondents jointly and severally for one month salary in lieu of notice Kshs 279,675
- 3.Unpaid leave days awarded at Kshs 199,768
- 4.Unpaid house allowance awarded at Kshs 503,315
- 5.Total award of Kshs 982,858 subject to statutory deductions pursuant to Section 49(2) of the Employment Act
- 6.Respondent to forthwith issue a Certificate of Service to the Claimant pursuant to Section 51 of the Employment Act
- 7.Claimant awarded costs of the suit and interest at Court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 35, 41, 43, 45, 49, 51, 74); memorandum of claim dated October 1, 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shijenje v Stephen Gikera & Punit Vadgama t/a Gikera & Vadgama Advocates (Cause E003 of 2020) [2023] KEELRC 351 (KLR)", Case Analysis (2023). Memorandum of claim dated October 1, 2020 (ELRC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/351/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.