[2015] KEELRC 978 (KLR)
The court found that the respondent failed to comply with the mandatory procedural requirements under section 41 of the Employment Act by not giving the claimant an opportunity to be heard or to defend himself against allegations of underperformance. The respondent did not appear or file a defence, and the...
Source-derived case information.
- Citation
- [2015] KEELRC 978 (KLR)
- Parties
- Claimant: Paul Kiarie Muiruri; Respondent: Widrups Group Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1420 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment entered for the claimant.
- Legal Topics
- Unfair Termination, Procedural Fairness, Employee Compensation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kiarie Muiruri
Claimant
Widrups Group Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unfairly terminated contrary to the Employment Act.
- 2 Whether the claimant was entitled to salary for May and part of June, salary in lieu of notice, and compensation for unfair dismissal.
- 3 Whether the respondent complied with the procedural requirements under section 41 of the Employment Act before termination.
Ratio Decidendi
The court found that the respondent failed to comply with the mandatory procedural requirements under section 41 of the Employment Act by not giving the claimant an opportunity to be heard or to defend himself against allegations of underperformance. The respondent did not appear or file a defence, and the claimant's evidence was unchallenged. The court held that the termination was unfair and awarded the claimant unpaid salary for May and part of June, salary in lieu of notice, eight months' salary as compensation for unfair dismissal, costs of the suit, and a certificate of service.
Court Disposition
Claim allowed. Judgment entered for the claimant.
Orders
- Respondent to pay claimant KES 142,000 for May 2014 salary.
- Respondent to pay claimant KES 45,642 for 9 days worked in June 2014.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1420 OF 2014
PAUL KIARIE MUIRURI………………………………………….CLAIMANT
VERSUS
WIDRUPS GROUP LIMITED………………………………...RESPONDENT
JUDGMENT
1. This cause proceeded as an undefended cause when the Court was persuaded that the respondent was duly served but failed to enter appearance or file a defence to the claim.
2. The claimant informed the Court that he was employed by the respondent on 3rd February, 2014 as a Civil and Structural Engineer. He was issued with an appointment letter and his appointment confirmed on 3rd May, 2015.
3. On 3rd June, 2015 he received a letter informing him of reduction of his salary on the grounds that he was under- performing. It was his evidence that he was never consulted on the issue of his underperformance. He attempted to meet the respondent’s director over the issue without success as the director refused to see him. He consequently wrote a letter of complaint on 4th June, 2014 which was never responded to. On 9th June 2014 he received a termination letter instead.
4. It was his evidence that he was never given any hearing or an opportunity to defend himself prior to the termination. He further stated that he was not paid for days worked in May and June.
5. The respondent after terminating his services gave him a tabulation of his final dues. One was based on gross salary of Kshs.50,000/= and another on Kshs.142,000/=. He was however not paid after the tabulation.
6. The Employment Act at section 41 requires that prior to termination of service on account of poor performance the employer must explain to the employee the reason for which the employer is considering such termination.
7. In a claim arising out of unfair termination of employment, the onus of proof and justification for reasons for dismissal lie on the employer.
8. The respondent though served never appeared nor filed a defence to the claim.The claimant on the other hand has reasonably and on a balanceof probability proved his claim against the respondent and the Court awards him as follows:-
(a) Salary for May, 2014……………………………..142,000. 00
(b) Salary for 9 days in June…………………………45,642. 00
(c) Salary in lieu of notice……………………………142,000. 00
(d) Eight months’ salary as compensation
For unfair dismissal……………………………1,136,000. 00
1,465,462. 00
(e) Costs of the suit
(f) The respondent shall issue the claimant with certificate
of service.
9. It is so ordered.
Dated at Nairobi this 22nd day of May 2015
Abuodha J. N.
Judge
Delivered this 22nd day of May 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge