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ELRCPartially AllowedCause No E005 of 2022· [2023] KEELRC 1727 (KLR)

Adero v Silversands Academy (Cause E005 of 2022) [2023] KEELRC 1727 (KLR)

Employment and Labour Relations Court
29 June 2023
1,924 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan private school head teacher won unfair termination damages after the school fired him without reasons or a hearing, and failed to defend the case in court.

What this practically means

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Executive summary

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The claimant, employed by the respondent, a private learning institution in Malindi, from September 2011 and promoted through the ranks to head teacher, was interdicted and his employment terminated on 13 April 2022 by a letter that assigned no reasons and afforded no hearing. The respondent entered appearance but filed no response and did not attend the hearing. The court held that without the employer's work records, the claimant's records would be taken as the truth, subject to proof of specific allegations. The alleged cash payment of Kshs. 20,000 per month on top of the documented Kshs. 27,000 salary was not proved, so the last wage was taken as Kshs. 27,000. Following Pius Machafu Isindu v Lavington Security Guards Limited, the court found that the absence of reasons in the termination letter was an unfair labour practice amounting to unfair termination contrary to section 45 of the Employment Act. No redundancy was established, so severance pay was refused. Relying on Ignas Karingo Mghona, the court held that private school wages are unregulated and the claimant, earning above the minimum wage, suffered no underpayment. The court awarded a declaration of unfair termination, ten months' compensation of Kshs. 270,000, notice pay of Kshs. 27,000, Kshs. 11,700 for thirteen days worked, and assessed costs at Kshs. 50,000, payable within 30 days failing which interest at court rates accrues.

Key legal issues

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01

Whether the termination was unfair for want of reasons and hearing

Holding

Termination was unfair; the termination letter assigned no reasons and no hearing was afforded, contrary to sections 40, 41 and 45 of the Employment Act

Reasoning

The letter dated 13 April 2022 assigned no reasons and there was no suggestion of business closure supporting redundancy. Following the Court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited, the employer must prove valid and fair reasons and afford a hearing under section 41. Failure to assign reasons is an unfair labour practice and violates section 45.

p. 3
02

Whether the claimant was underpaid as head teacher

Holding

No underpayment; private school wages are unregulated and the claimant earned above the minimum wage

Reasoning

Private schools are not regulated like public schools under the Teachers Service Commission, and no wage order governed the claimant's position. Applying Ignas Karingo Mghona & 4 others v Star of Hope International Foundation, private sector teachers negotiate their own terms provided the minimum wage law is not breached. The proved wage was Kshs. 27,000, above the applicable minimum wage.

p. 3
03

Severance pay entitlement

Holding

Severance pay not due because the termination was unfair termination, not redundancy

Reasoning

Severance pay under section 40 attaches to redundancy. The court found no evidence of operational requirements or business closure; the termination lacked reasons and was unfair termination. Having found unfair termination and awarded compensation therefor, severance pay was not available.

p. 4
04

Effect of the respondent's failure to file a response

Holding

The claim stands unchallenged and the claimant's records are taken as the truth; the employer's duty to supply work records under section 10(6) and (7) was not met

Reasoning

The respondent entered appearance but filed no response and did not attend the hearing. Under sections 10(6) and (7) of the Employment Act the employer must produce work records upon service of summons. In their absence, the claimant's record is the only record and the court takes it as the truth, though specific claims still required proof, as with the alleged Kshs. 20,000 cash payment.

p. 2

Legal principles established

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  • Without the employer filing a response or work records under Section 10(6) and (7) of the Employment Act, the claimant's record is taken as the truth
  • An employer may no longer terminate employment at will; reasons and due process are mandatory, including hearing before termination
  • Termination without assigning any reasons is an unfair labour practice leading to unfair termination contrary to section 45 of the Employment Act
  • Private school teachers are not equatable with public school teachers; absent wage regulation they are entitled only to the minimum wage

Court orders

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  1. 1.A declaration that employment terminated unfairly
  2. 2.Compensation awarded at Kshs. 270,000
  3. 3.Notice pay Kshs. 27,000
  4. 4.Pay for days worked Kshs. 11,700
  5. 5.Costs awarded at Kshs. 50,000
  6. 6.Respondent directed to pay the terminal dues within 30 days, failing which interest at court rates shall accrue

Authorities

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Legislation

  • Employment ActSection 10(6) and (7)
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 35
  • Employment and Labour Relations Court ActSection 12
  • Evidence Act
  • Civil Procedure Act/Rules
  • Regulation of Wages [General] [Amendment] Order 2012

Cases cited (2)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Ignas Karingo Mghona & 4 other v Star of Hope International Foundation
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, Section 12

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Adero v Silversands Academy (Cause E005 of 2022) [2023] KEELRC 1727 (KLR)", Case Analysis (2023). Cause No E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1727/eng@2023-06-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.