Simon v Vanga Shoes Company Limited (Cause E005 of 2022) [2023] KEMC 108 (KLR)
The bottom line
#A Kenyan court ruled an employee dismissed for absenteeism still deserved a fair hearing before dismissal, and awarded compensation.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrates' Court over employment claims
The Court had jurisdiction: the presiding magistrate was of the designated rank, the Claimant's gross monthly pay of Kshs. 16,462 was within the Kshs. 80,000 pecuniary limit, and the claim was filed within the three-year limitation period under section 90 of the Employment Act
The Court relied on Gazette Notice 6024 of 10th June 2018 appointing magistrates of the rank of Senior Resident Magistrate and above as Special Magistrates for employment disputes where gross monthly pay does not exceed Kshs. 80,000, and on section 90 of the Employment Act for limitation. All three hurdles - rank, pecuniary limit and time - were satisfied.
Whether the summary dismissal for absenteeism was substantively fair
Yes - the two uncontroverted warning letters for absenteeism armed the Respondent with a valid reason for summary dismissal under section 44
The Court evaluated the Respondent's Exhibits 2 and 3 (warning letters of 1st and 18th March 2022), which were uncontroverted. Absenteeism is gross misconduct under section 44(4)(a) of the Employment Act. The Respondent was therefore entitled to invoke section 44 and satisfied the substantive fairness test.
Whether the summary dismissal was procedurally fair
No - the Respondent wrongly assumed that summary dismissal under section 44 is exempt from the hearing requirements of section 41; there was no notice to show cause, no disciplinary hearing, no appeal opportunity and no certificate of service
The Respondent's HR Manager admitted in cross-examination that there was no disciplinary hearing and no notice to show cause. Section 41(2) expressly applies to summary dismissal under section 44(3) or (4). Departing from this obligatory duty renders the termination procedurally unfair within section 45(2)(c) and contrary to justice and equity.
Appropriate reliefs
Damages equivalent to 4 months' pay (Kshs. 65,848) with interest, and a Certificate of Service; notice pay refused
Applying section 49 of the Employment Act and the Kenfreight (E.A) Limited v Benson K. Nguti guidelines, the Court weighed the valid reason, the Claimant's contributory conduct (parity of blameworthiness), the short stint of service of about one year and six months, reasonable expectations and modest wages, settling on one-third of the maximum 12 months' award.
Legal principles established
#- Summary dismissal under section 44 of the Employment Act is not exempt from the mandatory procedural requirements of section 41; an employer must hear and consider the employee's representations before summarily dismissing for gross misconduct
- A termination which fails either the substantive or procedural fairness limb is unfair and unlawful
- Remedies under section 49 of the Employment Act are discretionary and must be exercised judiciously on sound judicial principles
Court orders
#- 1.A declaration that the termination of the Claimant's contract of employment by the Respondent was procedurally unfair and thus unlawful
- 2.The Respondent to pay the Claimant damages for unfair and unlawful dismissal equivalent to 4 months' pay in the sum of Kshs. 65,848, with interest at Court rates from the date of Judgment until payment in full
- 3.The damages are subject to statutory deductions per section 49(2) of the Employment Act, 2007
- 4.The Respondent to issue the Claimant with a Certificate of Service within 60 days
- 5.The Respondent to shoulder the costs of the suit
- Jurisdiction invoked
- Gazette Notice Number 6024 dated 10th June 2018 designating Senior Resident Magistrates and above as Special Magistrates for employment and labour relations cases where gross monthly pay does not exceed KShs. 80,000; section 90 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon v Vanga Shoes Company Limited (Cause E005 of 2022) [2023] KEMC 108 (KLR)", Case Analysis (2023). ELRC Cause Number E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/108/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.