The Employment and Labour Relations Court has nullified the sacking of a company manager on allegations of practising witchcraft and failing to respond to text messages from her supervisor, ruling the dismissal violated statutory procedures.
While voiding the termination, the court cited the employer’s failure to produce written termination charges, proof of disciplinary hearing notices, and verification of witchcraft claims.
Justice Christine Bari found that even though the employee, Ms NWM, contributed to her misfortune by extending her off-duty period without permission, the employer, Devkan Enterprises, failed to follow proper termination procedure.
“The record does not bear any evidence that the claimant was informed in writing of the charges against her, and nothing further shows that she was allowed an opportunity to be heard. The text message that the respondent says was sent to the claimant was not produced in evidence,” said Justice Christine Baari, awarding the claimant Sh3 million compensation for unfair termination.
NWM sued after being sacked in October 2023 upon reporting back to work from an off-duty period. She had taken a three-day break but extended it by two days, citing an emergency, though without formal approval.
It was her case that, upon inquiring about her dismissal, she was informed orally by two of the company directors that the reason for her sacking was witchcraft and the practice of sorcery.
She testified that the company’s human resources manager again affirmed this position.
She told the court that she was dismissed without being heard or given written reasons, contrary to the Employment Act.
However, the company said the termination was within the confines of the law. It stated that NWM failed to report back to work on the day she was due, and as a result, her immediate supervisor enquired from her through phone text messages, which were never responded to.
It was the employer’s case that, following Ms NMW’s insistent absence, she was informed via another text message to return to work for a disciplinary hearing, which she failed to attend.
The company said it had no choice but to terminate her employment as a result of her continued absence from her workplace without leave. It denied any wrongdoing and maintained that it followed all legal procedures in its engagement with the claimant.
Further, it argued that she was the author of her own dismissal and could not use the same to unjustly enrich herself.
But Justice Baari ruled that the employer breached Section 41 of the Employment Act, 2007, which sets out the procedure that an employer must adhere to in terminating an employee.
This procedure includes explaining the reasons for termination, allowing the employee to be accompanied by a representative, and providing an opportunity for the employee to respond before a decision is made.
“The respondent did not at all show that it even tried to adhere to the tenets of Section 41 of the Employment Act on procedural fairness. This court thus, on this basis, reaches the conclusion that the respondent failed the procedural fairness test in not granting the claimant an opportunity to be heard,” said the judge.
While declaring the dismissal was wrongful, the court awarded the claimant compensation of Sh3 million, comprising salary in lieu, unpaid salaries, and a reward for the unfair termination.
