[2016] KEELRC 1664 (KLR)
The court found that the claimant was dismissed via a phone call without any reason being provided, and the respondent failed to offer any justification in pleadings or evidence. The court held that the dismissal did not comply with section 41 of the Employment Act, which mandates valid reasons and procedural...
Source-derived case information.
- Citation
- [2016] KEELRC 1664 (KLR)
- Parties
- Claimant: Margaret Lihabi Ngaira; Respondent: Winfrida Ngumu Charles
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 723 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed; judgment for the claimant.
- Legal Topics
- Unfair Termination, Summary Dismissal, Procedural Fairness, Notice Pay, Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Margaret Lihabi Ngaira
Claimant
Winfrida Ngumu Charles
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's dismissal was unfair and wrongful under the Employment Act.
- 2 Whether the claimant was entitled to notice pay, pro rata leave, compensation for unfair dismissal, and costs.
- 3 Whether the respondent complied with the procedural requirements for termination under section 41 of the Employment Act.
Ratio Decidendi
The court found that the claimant was dismissed via a phone call without any reason being provided, and the respondent failed to offer any justification in pleadings or evidence. The court held that the dismissal did not comply with section 41 of the Employment Act, which mandates valid reasons and procedural fairness before termination. As a result, the dismissal was declared wrongful and the termination unfair. The claimant was awarded one month's salary in lieu of notice, pro rata leave pay for nine months worked, five months' salary as compensation for unfair dismissal, and costs of the suit. The respondent was also ordered to issue a certificate of service to the claimant.
Court Disposition
Claim allowed; judgment for the claimant.
Orders
- Respondent to pay claimant Kshs. 8,000 as one month's salary in lieu of notice.
- Respondent to pay claimant Kshs. 4,290 as pro rata leave pay for nine months worked.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 723 OF 2014
MARGARET LIHABI NGAIRA.....................................CLAIMANT
VERSUS
WINFRIDA NGUMU CHARLES...........................RESPONDENT
JUDGMENT
1. The claimant herein avers that she was employed in April, 2013 by the respondent as a domestic worker at monthly pay of Kshs.8000/=.
2. She worked until 5th January, 2013 when her services were terminated. According to her on 22nd December, 2013 she was granted leave of absence to celebrate Christmas with her family but on 3rd January, 2014 the respondent called and asked when she was resuming duties. She avers that the dismissal was contrary to rules of natural justice and section 41 of the employment Act. She therefore sought an order for compensation by the Court.
3. The respondent entered appearance through the firm of D. W. Muyundo and Associates and filed a brief response to the claim which merely denied the claimants claim and put her to strict proof.
4. When the matter came for hearing, on 24th June, 2015 I allowed the claimant to proceed ex parte after I was convinced that the respondent was duly served.
5. At the hearing the claimant repeated most of the averments in her memorandum of claim. She stated that on 5th January, 2014 she was informed enroute to work that her services were not needed as the respondent had found someone else. According to her she was not given any reason for dismissal and had to look for a friend to provide her accommodation. The 2nd respondent further refused her entry to her premises to take her personal belongings and has never given her back her personal belongings.
6. Termination or dismissal from Employment has to be carried out in accordance with the Employment Act. That is to say an employer must have valid and justifiable reason for dismissal, the reasons and or justification must be reasonably communicated to the employee and his or her representations heard. Where termination or dismissal does not comply with the Act the Court will declare such termination unfair and dismissal wrongful.
7. The claimant in this suit has averred that she was dismissed from employment via a phone call while enroute back to work. No reason was offered by the respondents. The respondent offered none either in the pleadings or evidence in Court. The Court is therefore inclined to believe the claimant that there were no reasons for her dismissal. The Court therefore pronounces the dismissal wrongful and the termination unfair and awards the claimant as follows:-
Kshs.
a. On month’s salary in lieu of notice……………8,000. 00
b. Pro rate pay for leave for 9 months worked
(15 days leave x 286)……………………………….4,290. 00
c. Five months salary for unfair dismissal…….40,000. 00
52,290. 00
d. Costs of the suit
8. The respondents shall issue the claimant with a certificate of service.
9. It is so ordered.
Dated at Nairobi this 5th day of February 2016
Abuodha J. N.
Judge
Delivered this 5th day of February 2016
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge