[2015] KEELRC 123 (KLR)
The court found that the respondent failed to provide valid reasons for the claimant's termination and did not follow the due process required under Section 41 of the Employment Act. The respondent's assertion that the claimant declined to resume work was contradicted by the claimant's union's immediate intervention...
Source-derived case information.
- Citation
- [2015] KEELRC 123 (KLR)
- Parties
- Claimant: Janet Mutheu Martin; Respondent: Fun An Shop Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 944 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment for the claimant.
- Judges
- HS Wasilwa
- Legal Topics
- Unfair Termination, Summary Dismissal, Procedural Fairness, Employee Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janet Mutheu Martin
Claimant
Fun An Shop Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly and unlawfully terminated from employment.
- 2 Whether due process under Section 41 of the Employment Act was followed in the termination.
- 3 Whether the claimant is entitled to terminal dues and compensation for unfair termination.
Ratio Decidendi
The court found that the respondent failed to provide valid reasons for the claimant's termination and did not follow the due process required under Section 41 of the Employment Act. The respondent's assertion that the claimant declined to resume work was contradicted by the claimant's union's immediate intervention and the respondent's lack of response. The court held that the termination was both unfair and unjustified under Section 45 of the Employment Act, as the respondent did not prove a valid reason or adherence to fair procedure. Consequently, the claimant was entitled to notice pay, accrued leave, salary arrears, and compensation for unfair termination, as well as a certificate...
Court Disposition
Claim allowed. Judgment for the claimant.
Orders
- Respondent to pay claimant KES 7,478 as notice pay.
- Respondent to pay claimant KES 7,478 as annual leave earned.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
ATNAIROBI
CAUSE NO. 944 OF 2011
(Before Hon. Lady Justice Hellen S. Wasilwa on 1st December, 2015)
JANET MUTHEU MARTIN.........................................CLAIMANT
VERSUS
FUN AN SHOP LIMITED .................................RESPONDENT
JUDGMENT OF THE COURT
1. The Claimant herein Janet Mutheu Martin filed her Memorandum of Claim on 14/6/2011 in person. Later on, the firm of S. K. Opiyo & Company Advocates filed their Notice of Appointment as Advocates for the Claimant.
2. The Claimant’s case is that, she was employed by the Respondent on 30th March 2008 as a Cleaner and Cook. The Claimant avers that the Respondent operates its business as a Supermarket and Restaurant at Diamond Plaza in Highridge Shopping Centre. She also avers that though her appointment letter designates her as a Cleaner, she was also doing cooking.
3. It is Claimant’s case that she served the Respondent faithfully but on 7/3/2011, she was verbally terminated after some items were stolen from the Supermarket.
4. On 27/2/2011, the management of Respondent had taken her and other colleges to Parklands police Station in the theft. They were interrogated but one of them Naomi Anundo admitted to be the one who had stolen the items. The police therefore found Claimant and others innocent and they were released. They attempted to go back to work but were turned away and told to come back again on 7/3/2011.
5. She then reported the matter to her union, the Kenya Hotels and Allied Workers Union for action. Her union wrote a letter to the Respondent but no action was taken. She then filed this case in court where she seeks to be paid her terminal dues plus notice pay, leave accrued, severance pay, overtime pay, underpayment and compensation for unlawful termination.
6. The Respondent filed their Statement of defence on 19/7/2011 through the firm of Tariq Khan & Associates Advocates.
7. It is the Respondent’s position that the Claimant was never terminated verbally but that she on her own volition declined to resume her duties.
8. The Respondent further avers that the Claimant is not entitled to the reliefs sought and they want the case dismissed accordingly.
9. Having considered evidence of both parties, it is apparent that the Respondent states that the Claimants was a theft suspect and was even arrested by police. Investigations were carried out but it cannot be the position that the investigations are still incomplete 4 years down the line.
10. The Respondent also avers that they asked Claimant to resume duty but she declined on her own volition. This assertion is defeated by the fact that the Claimant’s union wrote to them soon after the verbal dismissal (3 days) and the Respondent never responded to this letter.
11. It is apparent that there were no valid reasons to warrant the termination and due process as envisaged under Section 41 of Employment Act was not followed.
12. I find that termination of the Claimant unfair and unjustified under Section 45 of Employment Act 2007 which states as follows:
“(1) No employer shall terminate the employment of an employee unfairly.
2. A termination of employment by an employer is unfair if the employer fails to prove:
a.that the reason for the termination is valid;
b.that the reason for the termination is a fair reason:-
i.related to the employee’s conduct, capacity or compatibility; or
ii.based on the operational requirements of the employer; and
c.that the employment was terminated in accordance with fair procedure.
13. I therefore find for Claimant and award her as follows:
1. Kshs.7,478/= notice pay
2. Annual leave earned – 7,478/=
3. February 2011 salary – 7,478/=
4. 12 months salary as compensation for unlawful
termination = 7,478 x 12 = 89,736/=
TOTAL = 112,170/=plus costs and interest
The Claimant should also be issued with a Certificate of Service.
Read in open Court this 1st day of December, 2015.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Nyabena holding brief for Kadere for Claimant
No apperance for Respondent