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ELRCPartially AllowedCause No E147 of 2023· [2024] KEELRC 1166 (KLR)

Omondi v Danish Refugee Council (Cause E147 of 2023) [2024] KEELRC 1166 (KLR)

Employment and Labour Relations Court
3 May 2024
SRStella Rutto
4,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an ex-employee over KShs 3.2 million after finding her NGO employer had already decided to dismiss her before issuing a show cause notice.

What this practically means

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Executive summary

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The Claimant, employed on a fixed-term contract as Regional Human Resources and Administration Manager from 1st June 2022, alleged she was unfairly ejected from the Respondent's premises and locked out of its IT systems on 19th October 2022 and replaced by a Zimbabwean national. The Respondent contended the meeting of 19th October 2022 was a probationary review, that the Claimant later repudiated her contract, and that she was removed from the payroll on 1st December 2022. The Court framed three issues: whether the Claimant was terminated, whether the termination was unfair and unlawful, and entitlement to reliefs. Relying on RW1's email referring to a meeting to discuss the Claimant's 'departure from DRC' and the requirement to hand over company assets, the Court inferred the Claimant had been let go from 19th October 2022, with the formalisation of her exit pending. The Respondent produced no documented performance evaluation for the extended probation, failing to prove a valid and fair reason under Sections 43 and 45(2) of the Employment Act. The notice to show cause issued on 2nd November 2022 was held to be a formality since the decision to terminate had already been made. The termination was found unfair in substance and procedure. The Court entered judgment for the Claimant: a declaration of unfair termination, one month's notice pay (Kshs 498,295), four months' compensatory damages (Kshs 1,993,180), prorated leave pay (Kshs 294,900), prorated gratuity (Kshs 124,573.75) and pension (Kshs 298,980), totalling Kshs 3,209,928.75 with interest and costs. Claims for December 2022 salary, discrimination damages and full-contract salary and gratuity were declined.

Key legal issues

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01

Whether the Claimant was terminated on 19th October 2022

Holding

The Court found the Claimant was terminated as of 19th October 2022, inferring this from the RW1 email referring to a meeting to discuss her 'departure' and the requirement to hand over company assets

Reasoning

The email of 19th October 2022 from RW1 referred to a future meeting to discuss the Claimant's 'departure from DRC' and required her to return company assets. The Court held the use of 'departure' connoted the end of the employment relationship. The Respondent's assertion that the meeting was merely a probationary review was unsupported by documented evidence, and payment of salary to November 2022 did not displace the inference that the Claimant had already been let go.

p. 6
02

Whether the termination was substantively unfair

Holding

Yes - the Respondent failed to prove a valid and fair reason related to the Claimant's conduct, capacity or compatibility

Reasoning

The Respondent alleged poor performance but produced no documented performance evaluation for the extended probationary period, unlike the earlier documented evaluation. Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, an employer must prove a valid and fair reason; failure renders the termination unfair.

p. 7
03

Whether the termination was procedurally fair

Holding

No - the notice to show cause was a formality issued after the decision to terminate had already been made

Reasoning

Although a show cause notice was issued on 2nd November 2022, appearing to comply with Section 41, the decision to terminate had already been taken on 19th October 2022 when the Claimant was locked out and sent on leave. The notice therefore did not fulfil the spirit of Section 41 and the termination was procedurally as well as substantively unfair.

p. 7
04

Entitlement to reliefs

Holding

The Claimant was awarded notice pay, four months' compensatory damages, prorated leave, gratuity and pension; claims for December salary, discrimination damages and full-term salary/gratuity were declined

Reasoning

Compensation was calibrated to the short length of employment. Leave pay was awarded because the Respondent failed to produce leave records under Section 74(1)(f). Full-contract salary and gratuity were declined as anticipatory, consistent with Mary Mutanu Mwendwa capping loss of earnings at twelve months' gross wages.

p. 8

Legal principles established

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  • An employer must prove the reason for termination; failure to do so renders the termination unfair under Sections 43 and 45(2) of the Employment Act
  • A notice to show cause issued after the decision to terminate has already been made does not satisfy Section 41 of the Employment Act
  • Loss of earnings for unfairly dismissed fixed-term employees is capped at twelve months' gross wages and should not be awarded for the balance of an unserved contract

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unfair
  2. 2.One month's salary in lieu of notice of Kshs 498,295.00
  3. 3.Compensatory damages of Kshs 1,993,180.00 (four months' gross salary)
  4. 4.Kshs 294,900 being equivalent to unutilized 13.02 leave days
  5. 5.Kshs 124,573.75 being prorated gratuity for six months
  6. 6.Kshs 298,980.00 being total pension contributions
  7. 7.Total award of Kshs 3,209,928.75
  8. 8.Interest on the total award at court rates from the date of Judgment until payment in full
  9. 9.The Claimant shall have the costs of the suit

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41
  • Employment ActSection 74(1)(f)
  • Employment ActSection 5(3)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • James Nganga Mbugua v Kiambu Water and Sewerage Company Limited
    (2022) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    (2017) eKLR
  • Mary Mutanu Mwendwa v Ayuda Ninos De Africa-Kenya
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Employment and Labour Relations Court Act); judgment does not cite a specific constitutional provision for jurisdiction

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, "Omondi v Danish Refugee Council (Cause E147 of 2023) [2024] KEELRC 1166 (KLR)", Case Analysis (2024). Cause No E147 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1166/eng@2024-05-03

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