If you have been employed for six months and your employer decides to terminate your employment, there is a chance that you will have no legal recourse to complain about unfair dismissal and claim benefits.
This is how Mr Mtana Mwahunga lost his quest for up to Sh2.4 million in compensation for alleged unfair, wrongful and unlawful termination of his employment.
Mr Mwahunga was employed as a human resource manager at Swahili Beach Resort Ltd in Diani, Kwale County.
Court documents show that he was employed on January 5, 2022, before his employment was terminated on July 14, 2022.
Mr Mwahunga then moved to court to challenge his sacking, saying it was unlawful and unfair.
He filed the case in the Employment and Labour Relations Court, where he asked Justice Agnes Nzei to declare that his dismissal was unfair, unjust and unconstitutional.
The claimant also asked the court to issue an order directing the institution to pay him Sh2.4 million, representing his terminal dues for one year.
“My contract was terminated without any just cause and or adherence to due process,” he said
According to his allegations, Mr Mwahunga said that on June 22, 2022, the chairman of the facility, Mr Singh Kalsi, went to his office shouting before asking him to take his pending leave days.
He told the court that he took his pending leave as demanded by Mr Kalsi but when he returned to work on July 14, the facility's managing director asked him to resign as the chairman did not like him.
"I did not resign because there was no reason for me to do so," he said.
However, he alleges that his employment was subsequently terminated without any reason being given and without the benefit of a disciplinary hearing.
Mr Mwahunga therefore protested, arguing that the termination of his employment was unlawful and in breach of Sections 35, 41 and 45 of the Employment Act 2007.
These sections provide that parties to an employment contract may terminate the contract by giving the prescribed notice or by payment of salary in lieu of notice.
Section 41 of the Act requires notice and a hearing before termination on grounds of misconduct, while section 45 provides that in any form of termination, the employer must prove the reasons for the termination, otherwise it will be deemed unfair.
Mr Mwahunga said the termination of his employment was not procedural because he was not given reasons for his dismissal.
"I was not told the reason for my termination and was never given a show cause letter or taken through a disciplinary process. I am therefore claiming compensation for unfair termination of employment," he told the court.
However, it denied wrongfully and unlawfully terminating the claimant's employment and challenged him to prove his allegations.
The facility's sole witness, Amer Kalsi, said Mr Mwahunga was fired because he made staffing decisions without the consent of management.
"The claimant accepted both the termination letter and the payment on termination," he said.
However, the witness admitted that he had not produced any minutes of a meeting with the plaintiff before he was dismissed and that the termination letter did not give any reason for the sacking.
For his part, Mr Mwahunga denied the allegations and further explained that he had one day reported late to work but had called his boss and informed him in advance.
He also denied ever sending a number of the respondent's employees on leave without informing the employer.
"I was not informed of any such allegation, not even in my termination letter," he said.
The claimant argued that any termination should be in compliance with the law, as a contract is not superior to the law.
After hearing both sides, Justice Nzei singled out three issues for determination, including whether Mr Mwahunga is entitled to complain that he was unfairly terminated, whether the termination of his employment was unfair, and whether the relief sought was deserved.
But it was the first issue that robbed Mr Mwahunga of the millions he was seeking from the respondent.
The judge noted that documents filed in the case showed that Mr Mwahunga had been employed by the respondent for only six months and about nine days.
This section provides that an employee who has been continuously employed by his employer for a period of not less than thirteen months immediately before the date of termination has the right to complain that he has been unfairly terminated.
As the documents showed that Mr Mwahunga had only been employed for six months, the judge ruled that his case had no legal basis.
“The foregoing being the law, I find and hold that Mwahunga is not entitled to complain that his employment was unfairly terminated by the respondent,” said the judge
Justice Nzei further said that her findings on the first issue automatically determined the second and the third issues, as the plaintiff’s claim is for compensation for unfair termination of employment.
“The claim cannot stand, and the suit is hereby dismissed,” said the judge.
Mr Mwahunga can, however, appeal this decision.
