[2018] KEELRC 660 (KLR)
The court found that the claimant was dismissed without being afforded the procedural safeguards mandated by Section 41 of the Employment Act. The respondent failed to notify the claimant of the intention to terminate her employment or to consider her representations regarding her alleged incapacity. As a result,...
Source-derived case information.
- Citation
- [2018] KEELRC 660 (KLR)
- Parties
- Claimant: Damaris Katungwa Masila; Respondent: Fresh Squeeze Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 31 of 2017
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- judgment for the claimant
- Judges
- AN Makau
- Legal Topics
- Unfair Termination, Procedural Fairness, Notice of Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Katungwa Masila
Claimant
Fresh Squeeze Limited
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the claimant's dismissal was unfair and unlawful under the Employment Act.
- 2 Whether the claimant was entitled to notice and compensation for unfair termination.
Ratio Decidendi
The court found that the claimant was dismissed without being afforded the procedural safeguards mandated by Section 41 of the Employment Act. The respondent failed to notify the claimant of the intention to terminate her employment or to consider her representations regarding her alleged incapacity. As a result, the dismissal was both unlawful and unfair. The court held that the claimant was entitled to one month’s notice pay and compensation for four months for the unlawful dismissal, with interest at court rates from the date of judgment until payment in full.
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs. 11,000 as notice pay.
- The respondent shall pay the claimant Kshs. 44,000 as compensation for four months for unlawful dismissal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CASE NO. 31 OF 2017
DAMARIS KATUNGWA MASILA................................CLAIMANT
VERSUS
FRESH SQUEEZE LIMITED....................................RESPONDENT
JUDGMENT
1. The Claimant sued the Respondent stating that she was employed in November 2010 as a general labourer earning 11,000/-. She worked for 4 years till her dismissal on 14th July 2014 without cause. She averred that she was not given notice prior to dismissal. She thus sought the one month notice as well as the sums due for the unlawful termination.
2. The matter proceeded undefended. She testified that she was not notified of the intention to terminate her services. She stated that she fell ill and therefore was dismissed on account of her infirmity. The law makes provision for procedural fairness under Section 41 of the Employment Act. This section requires that the employer considers the representations of the employee prior to dismissal for incapacity so as to comply with the rules of natural justice as provided for under Section 41(2) of the Act. The provisions of Section 41 of the Employment Act provide as follows:-
41. (1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.
3. The Claimant was not afforded the safeguards under the law and is therefore entitled to claim as she did that her termination was unfair. I hold that her dismissal was unlawful and unfair in the circumstances and enter judgment for her as follows:-
i. Kshs. 11,000/- being notice;
ii. Kshs. 44,000/- being compensation for 4 months for the unlawful dismissal;
iii. Interest on the sums in i) and ii) above at court rates from date of judgment till payment in full.
It is so ordered.
Dated and delivered at Nairobi this 19th day of October 2018
Nzioki wa Makau
JUDGE