Kivisi v Performers Rights Society of Kenya (PRISK) (Cause 58 of 2019) [2024] KEELRC 1316 (KLR)
The bottom line
#A Kenyan court ruled that WhatsApp messages to a staff group count as proper notice to an employer, making the dismissal unfair and awarding millions in compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively justified (valid and fair reason)
The reasons advanced by the Respondent (absconding duty and failing to follow office procedures) were not valid and fair; the Respondent knew of the Claimant's whereabouts through WhatsApp communication and the WIPO invitation
The Claimant communicated his illness and attendance at the WIPO Namibia training through the staff WhatsApp group, which the HR read. The court took judicial notice of digital communication. The 30-day written special leave requirement was inapplicable given the short invitation and the Claimant's sick leave running to 18th November 2017. The Respondent made no effort to contact the Claimant about his absence, and the warning letter relied on related to different accusations.
Whether the termination was procedurally fair under Section 41 of the Employment Act
The termination was procedurally flawed: the disciplinary hearing was a sham, conducted by the HR against whom the Claimant had raised a grievance, with insufficient notice of one day and no minutes produced
The HR who had been the subject of the Claimant's grievance chaired the disciplinary hearing, creating bias. The Claimant was invited on 13th December 2017 to a hearing on 14th December 2017, too short notice to bring a companion. No minutes of the disciplinary meeting were produced. The Human Resource Policy required disciplinary action against senior staff by the board, not the HR, and did not permit summary dismissal of senior staff.
Whether the Claimant was entitled to compensation and lost salary under Section 49 of the Employment Act
The Claimant was awarded 8 months' gross salary as compensation for unfair termination, and lost salary for the remainder of his fixed-term contract
Having found the termination unfair, the court exercised its discretion under Section 49, taking into account the Respondent's conduct and the Claimant's 5 years of service, awarding 8 months' compensation. The contract being for a fixed three-year period, the Claimant was held entitled to the remainder of the contract. Service pay was refused as the salary attracted NSSF deductions under Section 35(6).
Legal principles established
#- An employer bears the burden of proving and justifying the grounds for termination of employment
- It is good practice for an employer to take the initiative of contacting an employee who absconds work to find out the reason for the failure to report
- An employee is entitled to adequate notice of a show cause letter and of a disciplinary hearing, with clear minutes of the proceedings
Court orders
#- 1.8 months' compensation for unlawful termination of Kshs 672,000/=
- 2.Lost salary (19 months) of Kshs 1,009,200/=
- 3.Costs and interests of the suit to the Claimant
- 4.The award shall be subject to taxes and statutory deductions but shall attract interest at Court rates from date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44, 45, 47(5), 49 and 35(6))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kivisi v Performers Rights Society of Kenya (PRISK) (Cause 58 of 2019) [2024] KEELRC 1316 (KLR)", Case Analysis (2024). ELRC Cause 58 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1316/eng@2024-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.