[2017] KEELRC 199 (KLR)
The court found that the claimant was constructively and unfairly dismissed by being locked out and indefinitely suspended without notice or a hearing, contrary to sections 41 and 43 of the Employment Act, 2007. The respondent failed to follow due process or provide a valid reason for termination. The claimant's...
Source-derived case information.
- Citation
- [2017] KEELRC 199 (KLR)
- Parties
- Claimant: Dorcas Kawira Kaburu; Respondent: Sana Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 249 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Constructive Dismissal, Procedural Fairness, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorcas Kawira Kaburu
Claimant
Sana Industries Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's dismissal amounted to unfair and unlawful termination.
- 2 Whether the claimant is entitled to compensation and other terminal dues as prayed.
Ratio Decidendi
The court found that the claimant was constructively and unfairly dismissed by being locked out and indefinitely suspended without notice or a hearing, contrary to sections 41 and 43 of the Employment Act, 2007. The respondent failed to follow due process or provide a valid reason for termination. The claimant's explanation for alleged poor performance was reasonable and not properly addressed by the respondent. Given the claimant's long service, desire to continue employment, and lack of contribution to her termination, the court awarded her the full compensation sought, including notice pay, prorated leave, service gratuity, and 12 months' salary. The absence of NSSF remittances...
Court Disposition
judgment for the claimant
Orders
- Declaration that the termination of the claimant's employment was unfair.
- Respondent to pay the claimant Kshs. 275,865.00 by 15.01.2018, failing which interest accrues from the date of judgment at court rates until full payment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO. 249 OF 2016
DORCAS KAWIRA KABURU..............................CLAIMANT
VERSUS
SANA INDUSTRIES LIMITED....................... RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday, 8th December, 2017)
JUDGMENT
The claimant filed the memorandum of claim on 01. 11. 2016 through Mwaura Kamau & Company Advocates. The claimant prayed for judgment against the respondent for:
a) A declaration that the claimant’s dismissal from her employment was wrong, unfair, and unlawful.
b) The respondent to pay the claimant a sum of Kshs. 275, 865. 00 being Kshs.15, 900. 00 notice pay, prorate leave pay Kshs.5, 565. 00, service gratuity for 8 years served Kshs.63, 600. 00 and 12 months’ compensation Kshs. 190, 800. 00.
c) Costs of the suit and interest.
The respondent was served but failed to enter appearance, to file a response, and to attend the mentions and the hearing.
The claimant testified to support her case. The respondent employed the claimant as a general worker from June 2006 to 14. 01. 2015. NSSF was not remitted. The claimant’s evidence was that she was locked out on 14. 01. 2015 as per instructions by the respondent’s manager one Yuhn. She was asked to report after 2 weeks and when she did, she was told to stay away until further notice.
To answer the 1st issue for determination the court returns that the lock out and the indefinite suspension amounted to constructive termination that was unfair for want of due process of a notice and a hearing under section 41 of the Employment Act, 2007 and further want of a valid reason per section 43 of the Act. If the claimant wished to terminate the claimant’s employment on account of poor performance, namely low production of braids, then the legitimate procedure was the one set out in section 41 of the Act. In any event, the claimant had explained that the low production had been due to a slow member of staff on one of the production tables and it was unfair to terminate the claimant’s employment in such circumstances of the case.
To answer the 2nd issue for termination the court returns that the claimant is entitled to the prayers as made. In awarding 12 months’ compensation as prayed for under section 49(1) (c) of the Act, the court has considered that the claimant had served for a long term of over 8 years, she was desirous of continuing in employment and she did not contribute to her termination. The court has considered the claimant’s evidence and returns that in absence of any other material on record she has established her other claims and prayers. Further, in allowing the prayer for gratuity, despite section 35(6) of the Act, the court considers that the claimant’s membership of NSSF served no purpose for social and old age protection because, no remissions were made in that regard.
In conclusion, judgment is hereby entered for the claimant against the respondent for:
a) The declaration that the termination of the claimant’s employment by the respondent was unfair.
b) The respondent to pay the claimant Kshs. 275, 865. 00 by 15. 01. 2018 failing interest to be payable thereon from the date of the judgment and at court rates till full payment.
c) The respondent to pay costs of the suit.
Signed, datedanddeliveredin court atNyerithisFriday, 8th December, 2017.
BYRAM ONGAYA
JUDGE