Kitaa v Aga Khan Education Services (Cause 126 of 2017) [2024] KEELRC 1106 (KLR)
The bottom line
#Kenya's Employment Court upheld a school's dismissal as lawful but awarded a long-serving employee unpaid gratuity, notice pay and salary because his employer couldn't prove key deductions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's terms of employment were governed by the CBA
The Claimant's terms were not covered by the CBA at the time of separation, as the 1st January 2013 agreement expressly stated he was no longer covered under the CBA
The claimant was initially employed as a messenger under CBA terms, but on promotion to Support Staff Supervisor by agreement dated 1st January 2013, clause 2 expressly excluded him from the CBA and its benefits. RW1's contrary assertion that the CBA did not apply was consistent with this. Claims premised on the CBA therefore failed, except the gratuity accrued before 2013 which remained payable.
Whether the termination met the substantive and procedural tests under sections 41, 43 and 45 of the Employment Act
There was a valid reason (negligent performance of duty and loss of stock from the store he managed) and the procedure complied with section 41, except that notice of the disciplinary hearing was less than 24 hours
The claimant was issued show cause letters, responded to the second, was invited to a disciplinary hearing with the right to be accompanied, attended with a colleague, admitted failures, and was informed of a right of appeal which he exercised unsuccessfully. The investigation revealed missing stock from a store under his charge. The only defect was the short notice of hearing, attracting nominal compensation.
Entitlement to terminal dues including gratuity, pension and November 2015 salary
The Claimant was awarded the gratuity balance of Kshs. 314,360, notice pay difference of Kshs. 10,000 and November 2015 salary of Kshs. 39,864; other heads were refused
The pension intended to replace service gratuity was never set up and the accumulated gratuity was never deposited into a pension account, so gratuity was recalculated on last salary for the full 21 years of service, less amounts paid. The unpaid November 2015 salary was payable because suspension without pay was not proved. Medical allowance, overtime, house allowance and extra-duty compensation all failed on the contract terms.
Legal principles established
#- Notice pay must be computed on gross pay under sections 35 and 49(1) of the Employment Act, and a shortfall in what was paid is recoverable
- Suspension without pay is not implied; the employer must prove a contractual or terms-of-service basis for withholding salary during suspension
- Where an employer fails to enrol an employee in a contributory pension scheme that was to replace service gratuity, the employee is entitled to service gratuity based on his last salary for the entire period worked
- Less than 24 hours' notice of a disciplinary hearing is unreasonable and warrants only nominal compensation where the rest of the process was compliant
Court orders
#- 1.Notice pay difference of Kshs. 10,000.00 awarded (39,864 - 29,864)
- 2.Service gratuity balance of Kshs. 314,360 awarded, less amounts already paid (Kshs. 216,984 and Kshs. 95,800), with interest from 26th October 2020 to date of payment
- 3.Nominal compensation of 1 month's gross salary, Kshs. 39,864.00, for the unreasonable notice of the disciplinary hearing
- 4.Salary for the month of November 2015, Kshs. 39,864.00, awarded as suspension was not proved to be without pay
- 5.Interest on all payments awarded at court rates from the date of part payment, except compensation which attracts interest from the date of judgment
- 6.Respondent ordered to pay the Claimant's costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007 (sections 35, 41, 43, 44, 45, 47, 49, 90 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitaa v Aga Khan Education Services (Cause 126 of 2017) [2024] KEELRC 1106 (KLR)", Case Analysis (2024). ELRC Cause (Memorandum of Claim dated 19th December, 2016, as amended on 19th July, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1106/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.