Wanjai v Mediamax Network Limited (Cause E607 of 2022) [2024] KEELRC 1085 (KLR)
The bottom line
#A Kenyan court awarded an ex-employee over Kshs 14 million after finding his dismissal unfair and his salary cut unlawfully extended without his consent.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The Respondent did not follow lawful procedure under section 41 of the Employment Act; the termination was unfair and unlawful
The Claimant was given only 24 hours to respond to a show cause letter based on a meeting that never took place. He was absolved of the two documented allegations at the disciplinary hearing, but a new allegation of absenteeism was introduced at that hearing without prior notice, denying him a fair chance to respond. The court found the process was aimed at terminating him regardless, and held the termination unfair and unlawful in the extreme.
Substantive fairness and validity of reasons
There was no valid or fair reason for the termination since the alleged grounds (a meeting that never took place) were not proved and fresh allegations were introduced
The show cause letter was founded on the Claimant's failure to attend a commercial meeting that was called off by the CEO. No minutes of any such meeting were produced. Once the panel absolved him of insubordination and negligence, the introduction of a new absenteeism charge showed the panel was predisposed to dismissal. Accordingly the reasons failed the tests in sections 43 and 45 of the Employment Act.
Lawfulness of the prolonged salary reduction
The salary reduction was lawful only for the six months consented to; extending it to 2022 was unlawful and the employee was entitled to the full pay from 2021 and 2022
The Claimant consented to a 50% salary reduction in April 2020 on the understanding it would be reviewed after three to six months. No evidence of a consultative meeting extending the reduction was produced, and the Respondent's own witness admitted the salary was never reinstated to Kshs. 514,100/-. Since consent is the touchstone for varying a fundamental term, the extension was unlawful and the deductions had to be refunded.
Entitlement to service pay despite NSSF registration
Non-remittance of NSSF deductions placed the Claimant in the same position as a non-member, so he was entitled to service pay
Although section 35(6) of the Employment Act excludes service pay for NSSF members, the court found the Respondent deducted NSSF contributions but never remitted them. Membership connotes payment of deductions while in employment; without remittance the Claimant was effectively not a contributor, so the exclusion did not apply and service pay at 15 days per completed year was awarded.
Quantum of compensation
The maximum of 12 months' salary compensation under section 49 of the Employment Act was awarded
Reinstatement or re-engagement being unavailable, the court fell back on compensation. Having found the termination manifestly unfair, that the Claimant was accosted with new allegations, and that the aim was to terminate him at whatever cost, the court took all factors into account and awarded the full 12 months' salary compensation calculated on the contractual salary of Kshs. 514,100/-.
Legal principles established
#- A unilateral or unagreed extension of a salary reduction beyond the period consented to is contrary to the law and the employee is entitled to the difference
- Where an employer fails to remit NSSF deductions, the employee is in law not a member of NSSF and remains entitled to service pay
- Confronting an employee with fresh allegations at a disciplinary hearing after absolving him of the documented charges renders the termination procedurally and substantively unfair
Court orders
#- 1.12 months' salary as compensation – Kshs. 6,169,200/-
- 2.One-month's salary in lieu of notice – Kshs. 514,100/-
- 3.Salary for 13 days worked in June 2022 – Kshs. 222,776.66
- 4.Kshs. 4,795,890/- being refund of salary unlawfully deducted for 21 months
- 5.Service pay at the rate of 15 days for each completed year of service for 7 years – Kshs. 1,799,350/-
- 6.Accrued and unpaid leave days – 43.75 days – Kshs. 749,729.16
- 7.A certificate of service strictly in terms of section 51 of the Employment Act
- 8.Costs of the suit to the Claimant
- 9.Interest at court rates on the sums in (a) to (f) from the date of judgment till payment in full
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 and Article 41 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjai v Mediamax Network Limited (Cause E607 of 2022) [2024] KEELRC 1085 (KLR)", Case Analysis (2024). Cause No E607 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1085/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.