Warugongo v Tata Chemicals Magadi Limited (Cause 98 of 2019) [2024] KEELRC 276 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal unfair because the employer couldn't prove poor performance, especially without a job description.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of reasons for termination
Termination was unfair because the alleged project losses were never demonstrated and the claimant's explanations were not rebutted
The Court found that throughout the disciplinary process, appeal and before the Court, the losses alleged against the claimant were not demonstrated at all. The respondent's witnesses could not confirm the claimant's involvement in procurement and offered no evidence justifying the reasons per section 47(5). Without a job description issued after re-designation, there was no yardstick for fairness, so the reasons failed under sections 43 and 45.
Procedural fairness under section 41
Procedure was fair despite the show-cause letter not being issued by the CEO per internal policy
The claimant received notice and a hearing as required by section 41. The complaint that the show-cause letter came from HRM rather than the CEO was an afterthought, not raised in the claimant's appeal letter, and no prejudice was shown. The claimant attended both the disciplinary hearing and an appeal hearing.
Constructive dismissal
Not established; no fundamental breach forced the claimant out of employment
The claimant continued working despite the re-designation without a job description and despite being asked to resign, indicating condonation. The pleaded case showed a disciplinary process leading to termination, not a resignation in response to fundamental breach of terms and conditions of service.
Remedies under section 49
Four months' gross pay awarded as compensation, with notice pay and other dues declined
The claimant worked two years and three months; the aggravating factor was the respondent asking him to resign without good basis. The Court considered that the claimant had already received extra pay in lieu of notice in fixing compensation at four months' gross pay less PAYE. Other heads were unsupported by submissions.
Legal principles established
#- An employer must demonstrate genuine and fair reasons for termination; where alleged losses are not demonstrated and no job description exists to gauge performance, the termination is unfair under sections 43 and 45 of the Employment Act
- In absence of a job description, there is no yardstick to establish the fairness of reasons for dismissal based on poor performance
- An employee who continues working despite lack of a job description is taken to have condoned that failure, defeating a constructive dismissal claim
Court orders
#- 1.Declaration that the termination was unfair for want of genuine and fair reason
- 2.Respondent to pay the claimant Kshs.2,767,840.00 (Less PAYE) by 01.04.2024 failing interest at court rates from the date of judgment until full payment
- 3.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45, 47(5) and 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warugongo v Tata Chemicals Magadi Limited (Cause 98 of 2019) [2024] KEELRC 276 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/276/eng@2024-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.