[2022] KEELRC 852 (KLR)
The court found that while the Respondent complied with procedural requirements for termination during probation by paying 7-days' salary in lieu of notice, it failed to provide evidence that performance targets were set or that the Claimant failed to meet them. Therefore, the termination was not based on valid or...
Source-derived case information.
- Citation
- [2022] KEELRC 852 (KLR)
- Parties
- Claimant: Judith Auma Jowi; Respondent: Kinangop Dairy Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 61 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed; termination declared unfair but no compensation awarded.
- Legal Topics
- Unlawful Termination, Procedural Fairness, Probationary Employment, Notice Pay, Accrued Leave, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judith Auma Jowi
Claimant
Kinangop Dairy Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was valid and fair.
- 2 Whether the Claimant was entitled to notice pay, accrued leave, salary for November 2017, and a certificate of service.
- 3 Whether the Respondent complied with procedural fairness under the Employment Act, 2007.
Ratio Decidendi
The court found that while the Respondent complied with procedural requirements for termination during probation by paying 7-days' salary in lieu of notice, it failed to provide evidence that performance targets were set or that the Claimant failed to meet them. Therefore, the termination was not based on valid or fair reasons as required by law. However, given the Claimant's short period of service (barely two months), the court declined to award compensation. The Claimant was entitled to 7-days' pay in lieu of notice, salary for November 2017, accrued leave for 3.5 days, and a certificate of service. The court also found that the Claimant had cleared with the Respondent, and the...
Court Disposition
Claim partly allowed; termination declared unfair but no compensation awarded.
Orders
- Respondent to pay Claimant 7-days' pay in lieu of notice.
- Respondent to pay Claimant salary for November 2017.
Full Case Text
Judgment text and source record
57 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 61 OF 2018
JUDITH AUMA JOWI ......................... CLAIMANT
VERSUS
KINANGOP DAIRY LIMITED......RESPONDENT
JUDGMENT
1. Judith Auma Jowi (the Claimant) sued Kinangop Dairy Ltd (the Respondent) on 15 March 2018, alleging a breach of contract.
2. The Respondent filed a Response on 30 May 2018 (out of time), and the Court admitted it on 19 September 2019.
3. The parties filed Agreed Issues on 16 February 2021, and the Cause was heard on 15 November 2021.
4. The Claimant and the Respondent’s Human Resources Manager testified.
5. The Claimant filed her submissions on 26 November 2021, while the Respondents submissions were not on record by this morning.
6. The Court will examine the Cause in terms of the Agreed Issues filed by the parties.
Unlawful termination of employment
Procedural fairness
7. Section 35(1)(c) of the Employment Act, 2007 requires the employer to issue written notice of termination of employment to an employee, while section 41 of the Act calls upon the employer to afford the employee an opportunity to be heard if the reason for termination is one of the three listed grounds.
8. The Claimant’s contract provided for a 6-months’ probation period.
9. Clause 4 of the contract required the giving of 7-days’ notice of termination during the probation period or equivalent pay in lieu of notice.
10. The Respondent opted to terminate the contract by offering 7-days’ pay in lieu of notice.
11. The Court cannot fault the Respondent on the question of due process.
12. Therefore, the plea for a 1-month salary in lieu of notice is without foundation, and the head of the relief is declined.
Validity and fairness of the termination
13. The reason given by the Respondent for terminating the Claimant’s contract was work performance.
14. The Claimant’s contract provided in clause 5 for the setting of targets by the Regional Sales Manager.
15. The Respondent did not provide any evidence during the hearing that the targets were set or that the Claimant did not meet the targets.
16. Without setting the targets and with the dearth of information on how the Claimant did not meet the performance expectations, the Court can conclude that the termination of the Claimant’s contract was not for valid or fair reasons.
Compensation
17. The Claimant served the Respondent for barely 2-months, and the Court is of the view that this is not an appropriate case to award compensation.
Unpaid salary
18. The Respondent offered the Claimant salary up to 17 November 2017, and nothing turns on this head of the claim.
Accrued Leave
19. The Respondent offered the Claimant the equivalent of 3. 5 days accrued leave for the 2 months she served.
20. The offer was in consonance with section 28(1)(b) of the Employment Act, 2007.
Certificate of Service
21. A Certificate of Service is a statutory entitlement, and the Respondent should issue one to the Claimant within 21-days
Clearance
22. The Respondent asserted that it had not paid the Claimant her dues because she had failed to clear.
23. During cross-examination, the Claimant maintained that she had cleared with the Respondent and gave the clearance form to her supervisor, one Gregory.
24. The said Gregory was not called to testify, and the Court finds that the Claimant cleared.
Conclusion and Orders
25. The Court finds and declares that the termination of the Claimant’s employment was not for valid and fair reasons, but the Court declines to award compensation.
26. The Claimant is awarded:
i. 7-days’ pay in lieu of notice.
ii. Salary for November 2017.
iii. Accrued leave for 3. 5 days.
27. The Respondent is directed to compute and pay the dues within 21-days, failure to which the dues to attract interest at court rates, from date of termination of employment, 17 November 2017.
28. The Respondent is further ordered to issue a Certificate of Service to the Claimant within 21-days.
29. The Claimant to have costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 9TH DAY OF
FEBRUARY, 2022
RADIDO STEPHEN, MCIARB
JUDGE
Appearances
For Claimant Amos O. Oyuko & Co. Advocates
For Respondent Wandune Associates, Advocates
Court Assistant Chrispo Aura