Wambua v Newlight Schools Limited (Cause 475 of 2018) [2023] KEELRC 531 (KLR)

The court noted the respondent asserted repeated theft of food items, a ground for dismissal under the Employment Act, but it was uncontroverted that no hearing was undertaken in terms of section 41. Since procedural fairness was not accorded, the termination was ipso facto unfair and unlawful notwithstanding the alleged gross misconduct.

Section 41 requires an employer to notify the employee of the grounds of contemplated termination and to give the employee an opportunity to present explanations with a fellow employee present. The respondent conceded no hearing was held, so the statutory safeguards were breached and the dismissal could not stand even if there were valid grounds.

In the absence of an employment letter and employer records, the court could not discern whether the respondent complied with the law on deductions and remittance of NSSF. Because the respondent failed to rebut the claimant's assertion with sufficient evidence, an adverse finding was made that contributions were not made, entitling the claimant to service pay.

Although the claimant claimed overtime for five hours per day over five years and two months, he did not lay before the court the material necessary for the court to ascertain whether he indeed worked overtime, so no award was made on that head despite the defence witness admitting shift records existed but were not produced.

The respondent asserted without proof that the claimant had been accused of sexual harassment. Since this was not made an issue in the pleadings, the court ignored the insinuations and reminded itself of the statutory provisions on sexual harassment under section 6 of the Employment Act.