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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 686 (KLR)

Omari v Euromax Pharmaceuticals Limited (Cause 324 of 2018) [2024] KEELRC 686 (KLR)

Employment and Labour Relations Court
28 March 2024
JRJames Rika
1,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee was unfairly fired because the employer gave no hearing and proved no misconduct, awarding 4 months' salary.

What this practically means

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Executive summary

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The Claimant, employed on 2nd March 2017 as a Medical Sales Representative at a monthly salary of Kshs. 40,000, sued for unfair termination. After serving a 6-month probation, he received a 1-month notice of termination on 2nd October 2017 citing gross misconduct and poor performance. Before the notice expired, the Respondent's Managing Director issued a termination letter dated 23rd October 2017 alleging he had absconded and was working for a competitor, Simba Pharmaceuticals Limited, and denying him all benefits. The Respondent alleged falsified sales reports and misleading business claims, but called no witnesses at trial. The Court framed three issues: fairness of procedure, validity of reasons, and entitlement to relief. It found no show-cause letter was issued and no disciplinary hearing convened for any of the three shifting allegations, in breach of Section 41; the one-month notice was short-circuited into summary dismissal. On reasons, the Respondent proved nothing - no falsified reports, no performance evidence, and the absconding claim was dismissed as empty rhetoric, contrary to Sections 43 and 45. Termination was unfair on both limbs. The Court awarded 4 months' salary (Kshs. 160,000) as compensation for unfair termination, one month's notice pay (Kshs. 40,000) under contract clause 8, and pro-rata annual leave of Kshs. 13,913 for 8 months' service, totalling Kshs. 213,913, plus a certificate of service. The claim for 12 months' compensation was not fully granted, and no order was made on costs and interest for want of a prayer. Judgment dated 28th March 2024.

Key legal issues

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01

Fair procedure under Section 41

Holding

Termination was procedurally unfair; no show-cause letter or disciplinary hearing was accorded, and new allegations (absconding, working for a competitor) were introduced without any hearing

Reasoning

The notice of 2nd October 2017 cited gross misconduct and poor performance but the Claimant was never asked to respond. The Respondent later added an accusation of absconding and of working for a rival, again with no show-cause letter or hearing. The one-month notice was cut short, converting termination into summary dismissal on 23rd October 2017, contrary to the minimum fairness standards in Sections 41 and 45 of the Employment Act.

p. 3
02

Valid reasons under Sections 43 and 45

Holding

The Respondent failed to prove any of the grounds alleged - falsification of sales reports, poor performance, or absconding/working for a competitor

Reasoning

No falsified sales reports were exhibited; no evidence of poor performance was presented; the allegation of absconding and working for Simba Pharmaceuticals was described as empty rhetoric. The Respondent opted not to call witnesses and adduced no evidence at the workplace or in Court to justify termination under Sections 43 and 45.

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Remedies

Holding

Compensation of 4 months' salary, one month's notice pay per contract clause 8, and pro-rata leave for 8 months' service under clause 6(b)

Reasoning

The Claimant served 8 months on an open-ended contract after probation ended in September 2017, and did not contribute to the termination. Compensation was fixed at 4 months' salary; notice pay of Kshs. 40,000 was contractual; pro-rata leave of 23 working days per year was computed at Kshs. 13,913. A certificate of service was ordered to issue.

p. 3

Legal principles established

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  • An employee must be given a show-cause letter and a disciplinary hearing before termination on grounds of misconduct
  • The employer bears the burden of proving valid and fair reasons for termination

Court orders

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  1. 1.The Respondent shall pay the Claimant compensation for unfair termination equivalent of 4 months' salary at Kshs. 160,000
  2. 2.Notice pay at Kshs. 40,000
  3. 3.Pro-rata annual leave at Kshs. 13,913 – total Kshs. 213,913
  4. 4.Certificate of Service to issue
  5. 5.No order on the costs and interest
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45 applied)

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, "Omari v Euromax Pharmaceuticals Limited (Cause 324 of 2018) [2024] KEELRC 686 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/686/eng@2024-03-28

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