Nyagah v Transchem Pharmaceuticals Limited (Cause E127 of 2021) [2023] KEELRC 2089 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether termination on account of the employee's filing of a petition against the employer contravenes Section 46(h) of the Employment Act
The termination was substantively unjustified and automatically unfair because it was on account of the Claimant's institution of legal proceedings against the Respondent
The termination letter itself admitted the termination was because the company was unable to meet the Claimant's demands in his ELRC petition. Section 46(h) provides in mandatory terms that the institution of legal proceedings against an employer is not a fair reason for dismissal. The court added that such termination breaches the employee's constitutional right against unfair labour practices.
Whether the termination complied with the procedural requirements of Section 41 of the Employment Act
The termination was procedurally unfair; the Respondent did not discharge its legal burden of proving compliance with Section 41
Section 41 imposes a mandatory three-component procedure: notification of the grounds, a hearing with an opportunity to make representations (accompanied by a colleague or union representative), and consideration of those representations. The Respondent led no evidence of compliance, so the burden under Section 45(2) was not discharged.
Whether the Claimant is entitled to compensation and a Certificate of Service
The Claimant was awarded 10 months' gross salary under Section 49(1)(c) and a Certificate of Service under Section 51
Considering his 14 years of service and that termination occurred without a hearing, and that his pursuit of constitutional rights culminated in dismissal in blatant disregard of Section 46, the court found compensatory relief under Section 49(1)(c) appropriate, awarding 10 months' gross salary.
Legal principles established
#- Terminating an employee because he has filed legal proceedings against the employer is a statutorily prohibited ground and the termination is automatically unfair under Section 46(h) of the Employment Act
Court orders
#- 1.A declaration that the Claimant's termination was unfair and unlawful
- 2.The Claimant be paid compensation for unfair termination equivalent to 10 months' salary, that is Kshs. 1,410,000 (Kshs. 141,000 x 10)
- 3.Interest on the compensation at Court rates from the date of judgment until payment in full
- 4.The Respondent bears the costs of this suit
- 5.The Respondent is ordered to issue the Claimant with a Certificate of Service, within 30 days of this Judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45, 46, 49, 51); ELRC Petition E081/2020 referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyagah v Transchem Pharmaceuticals Limited (Cause E127 of 2021) [2023] KEELRC 2089 (KLR)", Case Analysis (2023). Cause No E127 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2089/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.