[2013] KEELRC 468 (KLR)
The court found that the claimant was terminated without being given an opportunity to defend himself, and the respondent failed to comply with the procedural requirements of Section 41 of the Employment Act. The termination letter did not specify that the claimant was culpable for the alleged theft, nor was there...
Source-derived case information.
- Citation
- [2013] KEELRC 468 (KLR)
- Parties
- Claimant: Mutune Musau; Respondent: Designwear Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1166 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- DO Ogal
- Legal Topics
- Unfair Termination, Summary Dismissal, Notice Pay, Compensation for Unfair Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutune Musau
Claimant
Designwear Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unfair under the Employment Act.
- 2 Whether the claimant is entitled to salary in lieu of notice and compensation for unfair termination.
Ratio Decidendi
The court found that the claimant was terminated without being given an opportunity to defend himself, and the respondent failed to comply with the procedural requirements of Section 41 of the Employment Act. The termination letter did not specify that the claimant was culpable for the alleged theft, nor was there any evidence of a fair hearing. In the absence of any defense from the respondent and considering the statutory provisions, the court held that the termination was unfair. The claimant was therefore entitled to one month's salary in lieu of notice and twelve months' salary as compensation for unfair termination, as provided under Sections 49 and 50 of the Employment Act.
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs.10,868.00 as salary in lieu of notice.
- The respondent shall pay the claimant Kshs.130,416.00 as compensation for unfair termination.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
Cause 1166 of 2012 [if gte mso 9]><xml>
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MUTUNE MUSAU ………..…………………………………………………..……… CLAIMANT
VERSUS
DESIGNWEAR LTD……………………………………………………………… RESPONDENT
JUDGEMENT
_____________
By a Memorandum of Claim dated 12th June 2012 and filed in Court on 10th July 2012, the Claimant MUTUNE MUSAU alleges that he was employed by the Respondent DESIGNWEAR LTD in 2008. He was not given a letter of appointment. He was terminated on 17th February 2012. He was paid salary for the 14 days worked in February 2012 and nothing else. His last salary was Kshs.10,868. 00. He has produced a payslip for November 2011 and the letter of termination as exhibits 1 and 2 respectively.
The Respondent although served with the Memorandum of Claim and hearing notices as evidenced by the Certificates of Service filed in Court, did not file and reply or attend Court.
The case was heard on 23rd November 2012 when the Claimant testified that he worked diligently for the Respondent from 2008 to 14th February 2012. On that day the Claimant and 19 other employees were removing furniture and office equipment from the receiving to dispatch sections when one of the supervisors found one person who wanted to remove some things from the premises. When they finished work at lunch time they were told not to go for lunch. The employees asked why they did not detain the person who was seen by the supervisor and let the rest go for lunch or call the police. As a result of asking, the Claimant and 2 other employees were told to remove their uniforms and go away or write a letter of apology. Three days later they were told to go away. He was issued the termination letter on 17th February 2012. He claims Kshs.10,868. 00 being 1 months’ salary in lieu of notice and Kshs.130,320. 00 as compensation plus costs and interest.
The letter of termination reads as follows:-
17th February, 2012
Mr. Mutune Musau
ID.NO.9316351
Dear Sir,
RE:TERMINATION OF EMPLOYMENT
Due to an incidence that happened in our warehouse on 14th February, 2012, where some goods were stolen while in process of offloading our consignment, they were hidden in the warehouse and the items were found hidden underneath.
The management has decided to terminate your services, as with effect from 14th February, 2012.
Your dues will be given to you at the end of this month for the number of days worked.
Yours sincerely,
DESIGNWEAR LTD
FARIDA TAJBHAI
ACCOUNTS
From the letter it is clear that the Claimant was never given an opportunity to defend himself. The letter does not even state that he was the culprit of the attempted theft. Respondent did not comply with the requirements of Section 41 of the Employment Act. The termination of employment was without notice.
I find that the termination was unfair. In the absence of any defense, and taking into account the prayers for payment in lieu of notice and compensation for 12 months both of which are provided for under Section 49 as read with Section 50 of the Employment Act for an employee who has been terminated unfairly, I give judgement to the Claimant against the Respondent as follows:-
1. Salary in lieu of notice - Kshs.10,868. 00/=.
2. 12 months’ salary as compensation for unfair termination - Kshs.130,416. 00/= both adding up to a total of Kshs.141,284. 00/=.
3. Filing fees.
Orders accordingly.
Read in open Court this 21st day of February 2013.
HON. LADY JUSTICE MAUREEN ONYANGO
JUDGE
In the presence of: - _________________________________________ Claimant
_________________________________________ Respondent
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