Nyakundi v Sasini Coffee House Limited (Employment and Labour Relations Cause 122 of 2017) [2024] KEELRC 1758 (KLR)
The bottom line
#A Kenyan court ruled a cashier's dismissal unfair because her employer could not prove the Kshs 3,100 deficit or show she got a proper hearing.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of the summary dismissal
The dismissal was not substantively fair because the Respondent failed to prove the alleged cash deficit
The Respondent alleged a Kshs. 3,100 variance between the cashier periodic sales and shift summary, implicating two waiters' reports. It failed to produce the sales printout, shift summary, or the waiters' reports, and did not call the waiters as witnesses. The absence of this critical evidence meant the employer did not establish that the reason for dismissal existed.
Procedural fairness under Section 41
The dismissal was procedurally unfair as no disciplinary hearing was proved
The Respondent alleged a disciplinary hearing on 29th and 30th June 2016 but tendered no minutes of it. Following Standard Group Limited v Jenny Luesby, the Court held that a mere meeting not expressly presented to the employee as a disciplinary hearing cannot be one. The employee was therefore not accorded the hearing and right of accompaniment contemplated by Section 41.
Remedies — notice pay and July 2012 salary
Claimant entitled to notice pay under Section 35 and July 2012 salary; employer as record-keeper failed to controvert non-payment
The employment contract did not specify post-confirmation notice, so Section 35's one-month notice applied. The termination letter breakdown was held insufficient evidence of payment of notice pay. On July 2012 salary, the Respondent as keeper of employment records under Section 74 failed to produce evidence to controvert the Claimant's averment of non-payment.
Compensation quantum under Section 49(1)(c)
7 months' gross salary awarded instead of the 12 months sought
The Court considered the dismissal without a hearing when legally required, the hurried manner of the dismissal process, and the length of service of six and a half years, arriving at 7 months' gross salary based on the June 2016 pay slip showing gross salary of Kshs. 28,427.83.
Legal principles established
#- The initial burden of proving unfair termination rests on the employee; the burden of justifying the grounds rests on the employer
- A mere assertion by the employer that a reason existed does not discharge the Section 43 burden; documentary evidence must be produced
- A mere meeting not expressly designated as a disciplinary hearing, and unminuted, does not amount to a disciplinary hearing under Section 41
Court orders
#- 1.A declaration that the dismissal of the Claimant from employment was unfair and unlawful
- 2.Payment of one month's salary in lieu of notice of Kshs. 28,427.83
- 3.Payment of salary for July 2012 of Kshs. 28,427.83
- 4.Compensation for unfair termination of Kshs. 198,994/- (7 months' gross salary at Kshs. 28,427.83), total award Kshs. 255,849.66/-
- 5.Issue of a Certificate of Service to the Claimant within 30 days of the Judgment
- 6.Interest on the monetary awards at Court rates from the date of judgment until payment in full
- 7.The Respondent shall bear the costs of the suit
- Jurisdiction invoked
- Employment Act 2007 (Sections 41, 43, 44, 45, 47(5), 49(1)(c), 51) — first-instance employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakundi v Sasini Coffee House Limited (Employment and Labour Relations Cause 122 of 2017) [2024] KEELRC 1758 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1758/eng@2024-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.