Namachi v Tesia Supermarket (Employment and Labour Relations Claim 1 of 2022) [2023] KEELRC 1503 (KLR)
The bottom line
#A Kenyan court found Tesia Supermarket fairly dismissed a shop assistant for theft but unfairly skipped the required hearing, awarding her Kshs 59,029.
What this practically means
#Executive summary
#Key legal issues
#Employment status - casual or contractual employee
Claimant was a contractual employee from 1st July 2012 to 24th September 2013; casual status converted on lapse of three months' continuous service under section 37
It was not disputed the claimant was employed in July 2012 and dismissed in September 2013. The appointment letter was not produced, but continuous service exceeding three months converts casual employment to a monthly contract under section 37 of the Employment Act, conferring full statutory rights.
Substantive fairness of the dismissal
The reasons of theft and dishonesty were valid and justified under section 43
The dismissal letter cited theft and dishonesty. The claimant was caught with Vaseline jelly oil and had no evidence of her claimed source (a sales promotion lady); her apology was taken as relating to the theft. The applicable standard is the employer's genuine belief under section 43(2), not proof beyond reasonable doubt.
Procedural fairness of the dismissal
Termination was procedurally unfair; no hearing under section 41(2)
Procedural fairness is mandatory even for summary dismissal for gross misconduct. The respondent led no evidence of disciplinary proceedings or records and dismissed the claimant on the basis of lost trust after her apology. The absence of a hearing breached section 41(2) of the Employment Act.
Remedies for unfair termination
Notice pay of one month was sufficient compensation given valid reasons for dismissal; underpayment, house allowance and untaken leave awarded
Under section 49(4) factors, the claimant's conduct wholly contributed to the termination. Compensatory damages under 49(1)(c) require substantive unfairness; only procedural unfairness was found, so notice pay sufficed. Underpayment was computed against the Regulation of Wages Order 2012, with housing allowance at 15% under section 31, and untaken leave under section 28.
Burden of proof on salary records
Claimant discharged her burden of proving salary of Kshs. 9,600 since the employer failed to produce salary records under section 74
The employer, as custodian of employee records under section 74 of the Employment Act, did not produce records of salary paid, leave taken or disciplinary proceedings. The court therefore accepted the claimant's testimony of her salary and leave entitlement.
Legal principles established
#- Casual employment converts to a term contract where the employee works continuously for three months or more, entitling the employee to statutory rights of a permanent employee (section 37 Employment Act)
- Procedural fairness under section 41(2) Employment Act is mandatory even where summary dismissal for gross misconduct is contemplated
- Fair termination requires both substantive justification and procedural fairness
- Compensatory damages under section 49(1)(c) are justified only where termination is substantively unfair; notice pay suffices for procedural unfairness alone
Court orders
#- 1.Notice pay of Kshs. 9,600/-
- 2.Payment in lieu of leave Kshs. 9,600/-
- 3.Underpayment of salary Kshs. 16,101.66
- 4.Unpaid house allowance Kshs. 23,727.36
- 5.Total award of Kshs. 59,029.02
- 6.Interest at court rates from date of judgment until payment in full
- 7.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namachi v Tesia Supermarket (Employment and Labour Relations Claim 1 of 2022) [2023] KEELRC 1503 (KLR)", Case Analysis (2023). Employment claim filed 22nd September 2016 (Nairobi), transferred to Bungoma 2022 - memorandum of claim dated 21st September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1503/eng@2023-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.