Kyusya v Scarce Commodities Ltd (Cause 392 of 2017) [2023] KEELRC 2567 (KLR)
The bottom line
#A Kenyan court ruled a driver's dismissal unfair because the employer cited a law but gave no reason and held no hearing.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The Respondent failed to prove a valid and fair reason; the dismissal letter contained no reason and the Claimant was not shown responsible for the accident or theft
The dismissal letter merely quoted Section 44(4)(c) and (g) of the Employment Act without stating any reason or justification. Neither before termination nor at trial did the Respondent demonstrate wrongdoing by the Claimant. The Claimant was involved in an accident while transporting fuel and cargo was stolen, but he was not shown responsible and was never charged. Substantive justification under Sections 43(1) and 45(2) was therefore not established.
Procedural fairness under Section 41
The Respondent did not comply with the mandatory procedure in Section 41; no proof of delivery of show cause or hearing invitation letters, no disciplinary minutes, no opportunity to be heard
Section 41 mandates that an employer explain reasons to the employee and hear representations before termination on grounds of misconduct. RW-1 admitted having no evidence that the show cause letter, hearing invitations or dismissal letter were posted to the Claimant, and had no postal address for him. The postal receipt postdated the dismissal letter and no disciplinary minutes were exhibited. Procedural fairness was thus not achieved.
Reliefs entitlement
Twelve months' compensation claim reduced to eight months' salary; one month's pay in lieu of notice awarded; off days, public holidays and severance declined; certificate of service granted
Having found unfair termination, the court awarded eight months' salary (ksh. 214,008) as compensation and one month's salary in lieu of notice under Section 35(1)(c). Claims for off days and public holidays failed as unpleaded and unproved; severance failed because termination was not redundancy. A certificate of service was ordered under Section 51(1).
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- The employer bears the burden of proving the reason for termination; failure renders the termination unfair
Court orders
#- 1.A declaration that termination of the Claimant's employment was unfair
- 2.Judgment entered for the Claimant against the Respondent for compensation for unfair termination of employment of ksh. 214,008
- 3.Payment in lieu of notice of ksh. 26,751 (total award ksh. 240,759)
- 4.The Respondent shall issue the Claimant with a certificate of service pursuant to Section 51(1) of the Employment Act within thirty days of the judgment
- 5.The Claimant is awarded costs of the suit and interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (First-instance claim; specific enabling provision not cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kyusya v Scarce Commodities Ltd (Cause 392 of 2017) [2023] KEELRC 2567 (KLR)", Case Analysis (2023). Cause No 392 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2567/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.