[2019] KEELRC 659 (KLR)
The court found that the respondent failed to comply with the mandatory procedural requirements under section 41(2) of the Employment Act, 2007, as the claimant was not afforded an opportunity to be heard prior to her summary dismissal. No evidence was produced by the respondent to show that a disciplinary hearing...
Source-derived case information.
- Citation
- [2019] KEELRC 659 (KLR)
- Parties
- Claimant: Caroline Wanjiku Kimaru; Respondent: Family Bank Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2194 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed; summary dismissal found procedurally unfair; limited relief granted.
- Judges
- MSA Makhandia
- Legal Topics
- Summary Dismissal, Procedural Fairness, Notice Pay, Breach of Contract, Special Damages, Disciplinary Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Wanjiku Kimaru
Claimant
Family Bank Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's summary dismissal was procedurally fair under section 41(2) of the Employment Act, 2007.
- 2 Whether the claimant was entitled to compensation or other remedies for unfair dismissal.
- 3 Whether the claimant was entitled to salary in lieu of notice, unpaid statutory dues, unpaid leave days, or special damages.
Ratio Decidendi
The court found that the respondent failed to comply with the mandatory procedural requirements under section 41(2) of the Employment Act, 2007, as the claimant was not afforded an opportunity to be heard prior to her summary dismissal. No evidence was produced by the respondent to show that a disciplinary hearing took place or that the claimant was given a show cause notice. As a result, the summary dismissal was procedurally unfair. However, the court declined to award compensation or other reliefs, considering the circumstances of the dismissal, and only awarded the claimant one month's salary in lieu of notice. Claims for unpaid statutory dues, unpaid leave days, and special damages...
Court Disposition
Claim partly allowed; summary dismissal found procedurally unfair; limited relief granted.
Orders
- The respondent shall pay the claimant Kshs 48,000 in lieu of notice.
- No compensation or other reliefs are awarded.
Full Case Text
Judgment text and source record
63 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 2194 OF 2014
CAROLINE WANJIKU KIMARU........................................CLAIMANT
VERSUS
FAMILY BANK LIMITED................................................RESPONDENT
JUDGMEN
1. Caroline Wanjiku Kimaru (Claimant) instituted legal proceedings against Family Bank Ltd (Respondent) alleging constructive dismissal and breach of contract.
2. In a Statement of Response filed on 17 February 2015, the Respondent contended that the Claimant was summarily dismissed for lawful cause and that there was no breach of contract on its part.
3. On 28 June 2017, the Claimant filed an Amended Statement of Claimto introduce a head of claim for special damages, and the Respondent filed an Amended Memorandum of Response on 17 July 2017.
4. The Claimant filed a Reply to the Amended Memorandum of Response and the Cause was heard on 29 May 2019 and on 15 July 2019. The Claimant and the Respondent’s Head of Security testified. The witnesses produced exhibits and adopted their filed witness statements.
5. Although the Court directed the parties to file Agreed Issues, different sets of Issues were filed.
6. The Claimant’s submissions were not on file by this morning while the Respondent filed its submissions on 27 August 2019.
7. The Court has considered the pleadings, evidence and submissions and condensed the Issues for determination as examined hereunder.
Unfair termination of employment or constructive dismissal?
8. The Claimant was issued with a summary dismissal letter dated 15 January 2014, and therefore it is the view of the Court that this was not a case of constructive dismissal.
Procedural fairness
9. Section 35(1)(c) of the Employment Act, 2007 contemplates written notice of termination of employment unless it is a case of summary dismissal in terms of section 44(1) of the Act.
10. The written notice, therefore, did not apply in the instant case.
11. However, in terms of section 41(2) of the Employment Act, 2007, a hearing is mandatory in cases of summary dismissal.
12. Prior to the summary dismissal of the Claimant, the Respondent had discovered certain erroneous transactions and it called the Claimant for a meeting around 8 August 2013.
13. In the meeting, it was proposed that the Claimant reimburse the lost amount of Kshs 580,500/-, and in default to be charged with a criminal offence.
14. The Claimant was requested to give a commitment on how she would repay the Kshs 580,500/- and in a letter dated 7 December 2013, she indicated that she could not repay the money within 3 days.
15. The summary dismissal letter was thereafter issued on 15 January 2014. The letter cited section 44(4)(g) of the Employment Act, 2007.
16. On why she was contending that the dismissal was unfair, the Claimant testified that upon request, she went to the Respondent’s Head Office on 11 December 2013 and was instructed by the Security Office to record an incident report after which she was arrested and placed in custody, charged in Court, and that she was eventually acquitted. She stated that she was denied access to the workplace after release.
17. The Claimant testified that she was not issued with a show cause notice or subjected to a disciplinary hearing.
18. It is in the public domain that the Respondent operates a banking business.
19. Although there was no explicit evidence that it has a disciplinary policy as required by section 12 of the Employment Act, 2007, the Court would have expected at the very least that the Respondent would disclose the date, venue and particulars of the persons who may have afforded the Claimant an opportunity to be heard before the decision to dismiss was taken.
20. If the hearing took a formal context, no minutes of such a hearing was produced.
21. The Court, therefore, agrees with the Claimant that she was not afforded an opportunity to be heard as envisaged by section 41(2) of the Employment Act, 2007.
22. The Court in the circumstances finds that the summary dismissal of the Claimant was procedurally unfair.
Substantive fairness
23. With the conclusion on procedural fairness, it is not necessary for the Court to examine whether the Respondent discharged the burden placed on it by sections 43 and 45 of the Employment Act, 2007.
Compensation
24. Compensation is a discretionary remedy.
25. In the view of the Court, this is not a suitable case to award compensation considering the circumstances under which the Claimant was dismissed.
Salary in lieu of notice
26. Since the Court has concluded that the Respondent did not comply with the requirements of section 41(2) of the Employment Act 2007, it would award the Claimant the equivalent of 1 month salary in lieu of notice (salary was Kshs 48,000/-).
Breach of contract
Unpaid statutory dues
27. The Claimant did not particularise or prove the statutory dues she was not paid.
28. The Court finds that this head of claim was not proved.
Salary for October to December 2013
29. The Respondent produced records to show that the Claimant was paid salaries from October to December 2013.
30. Consequently, the Court finds there was no breach of contract with respect to payment of the salaries.
Unpaid leave days
31. The Claimant did not lay any evidential foundation to this head of claim and it is declined.
Special damages
32. The Claimant sought Kshs 300,000/- said to have been fees paid to a firm of advocates to defend her in the criminal case. Apart from producing a fee note, the Claimant did not produce any evidence that she paid the fees.
33. The Court, therefore, declines to award the special damages.
Conclusion and Orders
34. The Court finds and holds that the summary dismissal of the Claimant was procedurally unfair and awards her
(i) Pay in lieu of notice Kshs 48,000/-
35. The Court declines to award compensation or any of the other reliefs sought.
36. Each party to bear own costs.
Delivered, dated and signed in Nairobi on this 8th day of October 2019.
Radido Stephen
Judge
Appearances
For Claimant Ms Sinana instructed by Denis Anyoka Moturi & Co. Advocates
For Respondent Mr Kibicho/Mr. Ngige instructed by J.K. Kibicho & Co. Advocates
Court Assistant Lindsey