HR teams in the dock for illegal and irregular sacking of employees
Employers are losing in court for failing to give adequate notices of termination, unfair disciplinary hearings, and failure to prove allegations of poor performance or misconduct against employees.
The rising number of court indictments for illegal and irregular dismissal of employees has turned the spotlight on the Human Resource teams.
In the last three years, employees have won big at the Employment & Labour Relations Court after being awarded huge damages due to unlawful and unfair termination.
The judgments have shone a light on the competency of the HR managers and their understanding and compliance with employment laws after it emerged that some worker rights were violated by the employers.
Among the reasons the Labour court is ruling in favour of the employees is the employer's failure to give a fair hearing at the time of dismissal and failure to follow the legal procedure of termination.
Another reason is failure to prove that the reason for termination was valid and failure to prove breach of contract.
Employers are also losing in court for failing to give adequate notices of termination, unfair disciplinary hearings, and failure to prove allegations of poor performance or misconduct against the employee.
Some employers also do not comply with the provisions of Fair Administrative Action. As a result of the non-compliance with the law, affected employees and social justice lawyers are having a field day in court.
The latest to be awarded huge damages for illegal sacking is Sam Shollei, the former managing director of Keroche Breweries.
Awarded Sh45.5 million
He was awarded Sh45.5 million by Judge Hellen Wasilwa who termed the brewer’s decision to sack him as unlawful because he was not given notice or reasons for his sacking. He was sacked in November 2018.
He was fired hardly one year after he reported to work at the Naivasha-based brewery. The former MD was headhunted based on his employment record.
His sacking stemmed from an email he sent to the top management and which was deemed demeaning and disrespectful. He was also accused of poor performance after the company’s sales dropped. But the court found the brewer failed to give a basis for the alleged poor performance.
Former acting Ethics and Anti-Corruption Commission (EACC) chief executive Jane Wanja Muthaura also walked away with Sh10.2 million for unlawful and unfair termination of her contract in 2013.
In the judgment rendered in August 2021, Justice James Rika found that Ms Muthaura was not only subjected to a humiliating demotion before being fired but was also sacked without any allegations or a letter to show cause.
Also, during the termination of her contract in March 2013, there were neither charges nor disciplinary hearings or findings of any misconduct.
The judge also dismissed the EACC’s claim for a refund of Sh3 million from Ms Muthaura, which was paid to her as special duty allowance when she was the acting CEO.
At the time, the commission was transitioning from the Kenya Anti-Corruption Commission to the EACC.
Justice Rika said the hasty replacement of Ms Muthaura was illegal because, on December 3, 2012, the court had directed that she be sworn in as the Acting CEO.
Last month, the former Personal Assistant to the Chief Strategist and Development Officer at an international school got an award of $40,000 (Sh4.8 million) for the unlawful termination of her employment seven years ago.
Justice Maureen Onyango awarded Ms Lia Gloria Mayka the amount as damages after finding that the sack was premised on invalid reasons and the company failed to prove a fair procedure was followed. “It is my view that the Respondent’s treatment of the Claimant bordered on servitude which is the highest form of human indignity. It is for this reason that I find that she is entitled to maximum compensation for the unlawful and unfair termination,” said Justice Onyango.
Childcare duties
Ms Mayka testified that she was exploited by being assigned roles and tasks such as taking care of her supervisor’s children, a role she was not hired to perform.
She said that the childcare duties were in addition to her official roles. And she worked as directed.
The court heard that she was dismissed verbally on February 10, 2015. She attributed her treatment to the ambiguity in her roles and the company’s failure to give her a job description.
Former Director for Corporate Services at the National Hospital Insurance Fund (NHIF) Dinah Jemelly Kirwa also got Sh13 million as damages for unfair and unlawful dismissal.
Ms Kirwa was dismissed in September 2019 for allegedly abdicating her role of advising the CEO on departmental issues and failing to ensure the NHIF Board adheres to the budget, leading to a loss of Sh106 million. She was said to have caused the loss by irregularly recruiting 87 employees without following the due process.
But Justice Onesmus Makau found that the disciplinary process against Ms Kirwa was unlawful and unfair because it was initiated, conducted, and concluded by an ad-hoc committee of the NHIF Board of management.
The disciplinary process was initiated by the Board chairperson and the hearing was done by an ad-hoc committee.
“The NHIF Board of Management manual expressly provides that the CEO ought to have initiated the disciplinary process and chair the same,” said the judge.
He added that even if the process initiated by the Board Chairperson was allowed to stand, there would still be a serious infringement of Ms Kirwa’s right to a fair disciplinary process because it means that her right of appeal was taken away.
This is because her appeal would be going for a hearing by the same Board management which acted as the complainant, investigator, prosecutor, and Judge at the same time.
Interior Cabinet Secretary nominee Kithure Kindiki’s law firm, Kithure Kindiki & Associates, was ordered to pay an employee Sh2.2 million for unlawfully terminating her employment when she was pregnant and due. She was sacked in March 2018.
The court ordered the firm to compensate Yasmin Josephine Mokaya, a lawyer who worked at the law firm Sh1.5 million as damages for violation of her rights, Sh552,894 (equivalent to six months compensation for unlawful and unfair termination of employment), Sh129,008 (compensation for unused leave days) and Sh92,149, her one month salary in place of notice.
Unpaid maternity leave
The judge found that the law firm’s decision to fire the lawyer after she refused to take an unpaid maternity leave violated her constitutional right against discrimination on grounds of pregnancy.
"The court finds and declares that the Respondent violated Section 5(3) (a) of the Employment Act (2007) read with Article 27(4) of the Constitution for terminating the employment of Ms Mokaya on account of her pregnancy. The conduct by Prof Kindiki was discriminatory, unfair, and unlawful," said the judge adding that the Ms Mokaya did not contribute to her termination.
Former CEO of Brand Kenya Board Mary Luseka was also awarded Sh7 million for unfair termination.
Justice Rika said the decision of the Board to terminate her three-month contract was unfair for failing to give any specific reason or reasons justifying termination.
He noted that the former CEO received various letters on different dates asking her to explain certain allegations which were never indicated in the letter to show cause.
