[2017] KEELRC 2004 (KLR)
The court found that the Respondent failed to provide the Claimant with the real reason for termination and did not afford him an opportunity to make representations as required by statute. The purported reliance on a contractual notice provision was insufficient under the Employment Act, 2007, which mandates both...
Source-derived case information.
- Citation
- [2017] KEELRC 2004 (KLR)
- Parties
- Claimant: Paul Kipkemoi Lelei; Respondent: Laminate Tube Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Cause 21 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; termination declared unfair and invalid; compensation and November 2013 wage awarded.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Procedural Fairness, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kipkemoi Lelei
Claimant
Laminate Tube Industries Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Claimant’s employment was unfairly terminated.
- 2 What remedies or orders are appropriate for the Claimant.
Ratio Decidendi
The court found that the Respondent failed to provide the Claimant with the real reason for termination and did not afford him an opportunity to make representations as required by statute. The purported reliance on a contractual notice provision was insufficient under the Employment Act, 2007, which mandates both substantive and procedural fairness. The court concluded that the termination was procedurally unfair and invalid, entitling the Claimant to compensation equivalent to the maximum provided by law, considering his ten years of service and the circumstances of the dismissal.
Court Disposition
Claim allowed in part; termination declared unfair and invalid; compensation and November 2013 wage awarded.
Orders
- Respondent to pay Claimant Kshs 373.30 as November 2013 wage.
- Respondent to pay Claimant Kshs 134,748 as compensation for unfair termination.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET
CAUSE NO. 21 OF 2017
(Originally Nakuru Cause No. 632 of 2014)
PAUL KIPKEMOI LELEI CLAIMANT
V
LAMINATE TUBE INDUSTRIES LIMITED RESPONDENT
JUDGMENT
1. This Cause was heard on 2 November 2017 when Paul Kipkemoi Lelei (Claimant) and Valentine Saina, the Human Resource Manager with Laminate Tube Industries Ltd (Respondent) testified.
2. Although the parties had framed some 9 questions as arising for the Court’s determination, the real issues can be condensed into 2, to wit, whether the Claimant’s employment was unfairly terminated and appropriate remedies/orders.
3. The Claimant filed his submissions on 8 November 2017, while the Respondent filed its submissions on 21 November 2017.
4. The delivery of this judgment has been brought forward due to my transfer (Deputy Registrar notified parties of the change through her letter dated 10 November 2017).
Fairness of termination
5. Pursuant to section 41 of the Employment Act, 2007, an employer is under a statutory obligation to inform an employee of any allegations which may lead to termination of the employment contract if the allegations involve misconduct, performance or physical incapacity.
6. In the instant case, the Respondent’s Human Resources Manager, mirroring what was stated as the reason in the termination letter, stated that the termination of the Claimant’s contract was grounded on a contractual provision allowing termination on notice of 1 month or pay in lieu of notice.
7. However, under cross examination, the witness gave the reason as performance.
8. Before the coming into effect of the Employment Act, 2007, an employer could terminate an employee’s contract without cause, for a good reason, for a bad reason or for no reason provided that the contractual provision on termination was complied with or appropriate amount paid in lieu thereof.
9. In my view, the legal implication of section 41 of the Employment Act, 2007 as read with sections 43 and 45 have radically shifted the legal framework and it is imperative that the employee is given reasons and afforded an opportunity to make representations.
10. If the real reason for the Claimant’s dismissal from employment was performance (this reason was not given in the dismissal letter) then the Respondent should have given the Claimant an opportunity to make representation. He was not.
11. The Court therefore can conclude that the termination of the Claimant’s contract was not only procedurally unfair, but it was anchored on a common law position which has been altered by statute and therefore invalid.
Appropriate remedies
Wages for October 2013
12. According to the final dues schedule, the Claimant was paid and acknowledged receipt of Kshs 9,765/- as October 2013 wages and therefore he is not entitled to this head of relief.
Wage for November 2013
13. The effective date of separation was 1 November 2013 and the Court holds that the Claimant is entitled to the Kshs 373/30 pleaded.
Pay in lieu of notice
14. The Claimant was paid and acknowledged receipt of Kshs 9,765/- as 1 month pay in lieu of notice.
Gratuity
15. If by gratuity the Claimant meant service pay in terms of section 35(5) of the Employment Act, 2007, he is not entitled to this head of relief as he was a contributor/member of the National Social Security Fund.
16. If there was a contractual basis for gratuity as opposed to service pay, no evidential basis for it was disclosed or proved in Court.
Compensation
17. The Claimant served the Respondent for about 10 years and considering the length of service, the Court is of the view that the maximum compensation would be appropriate and fair (gross wage at separation was Kshs 11,229/-).
Conclusion and Orders
18. The Court finds and holds that the termination of the Claimant’s contract was not only procedurally unfair but invalid, and the Court awards him and orders the Respondent to pay him
(i) November 2013 wage Kshs 373/30
(ii) Compensation Kshs 134,748/-
TOTAL Kshs 135,121/30
19. Claimant to have costs on half scale.
Delivered, dated and signed in Eldoret on this 24th day of November 2017.
Radido Stephen
Judge
Appearances
For Claimant Mr. Kenei instructed by Chepkwony & Co. Advocates
For respondent Mr. Bungei instructed by Kamau Lagat & Co. Advocates
Court Assistants Nixon/Etyang