Salik v Maya Duty Free Limited (Employment and Labour Relations Cause 1583 of 2017) [2024] KEELRC 1999 (KLR)
The bottom line
#A Kenyan employer must prove it followed fair dismissal procedure; vague grounds and no hearing made this summary dismissal unfair and costly.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally fair under section 41 of the Employment Act
The dismissal was procedurally unfair; the Respondent did not notify the Claimant of the grounds, invite her to a disciplinary hearing or accord her a chance to be heard.
The court found no evidence that the Claimant was informed of an intention to dismiss or invited to a disciplinary hearing. The meeting between the Director and the Claimant and her son over the assault could not amount to a section 41 disciplinary hearing. The email sent through the Claimant's son's address raised unanswered questions of delivery, and the dismissal grounds in the letter were too vague to found dismissal.
Whether there was a valid and fair reason for the dismissal
The dismissal was substantively unfair and retaliatory, arising from the assault by a director and the Claimant's inquiry about her safety.
The alleged assaulter did not testify to deny the assault and the Respondent's witness did not deny it. The Claimant's prudent inquiry to the HR Manager on whether it was safe to resume duty went unanswered; instead she was sent a dismissal letter. The grounds in the dismissal letter were vague and internally contradicted by the Respondent's own admission that she had been allowed time off despite unsigned notes.
Whether the Claimant was entitled to the reliefs sought
Partially: withheld February salary, one month's notice pay and 10 months' gross salary compensation were awarded; notice beyond one month and NSSF/NHIF claims were declined.
The Respondent failed to prove justification for withholding February salary, having placed no documentary evidence on pre-utilised leave days. Compensation was assessed at ten months' gross salary given the retaliatory dismissal, the unaddressed assault, length of service and the Claimant's lack of contribution. Notice pay was limited to the statutory one month, and the NSSF/NHIF claim failed for want of proof.
Whether the Respondent's counterclaim for one month's notice pay was merited
The counterclaim failed because the Claimant did not abscond duty and was unfairly dismissed.
Having found that the Claimant did not abscond duty but was on sick off following a workplace assault and was unfairly dismissed, the premise of the counterclaim - constructive resignation without notice - collapsed. No response having been filed to the counterclaim did not save it, as the court's finding on absence dispositive of it.
Legal principles established
#- Procedural and substantive fairness together form the total unit of fairness in termination of employment under the Employment Act.
- The burden of proving adherence to the section 41 procedure rests on the employer, including proof of a disciplinary hearing and notification of grounds.
- Summary dismissal under section 44(4)(a) must rest on grounds that are not vague; grounds too vague cannot sustain a dismissal.
- An employee dismissed without notice is entitled to one month's salary in lieu of notice under sections 35 and 36 of the Employment Act.
Court orders
#- 1.A declaration that the summary dismissal against the Claimant was unfair.
- 2.Payment of withheld salary for February 2017 of KShs.136,250/-
- 3.Payment of one month's salary in lieu of notice of KShs.136,250/-
- 4.Compensation for unfair dismissal under section 49(1)(c) of the Employment Act of 10 months' gross salary, KShs.1,362,500/-
- 5.Interest on the withheld salary at court rates from 27th February 2017 until full payment
- 6.Costs of the suit to the Claimant
- 7.The Respondent to issue the Claimant with a Certificate of Service under section 51 of the Employment Act
- 8.The Respondent's counterclaim is dismissed with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salik v Maya Duty Free Limited (Employment and Labour Relations Cause 1583 of 2017) [2024] KEELRC 1999 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1999/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.