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ELRCAllowedCause No 275 of 2012· [2012] KEELRC 147 (KLR)

LINUS BARASA ODHIAMBO V WELLS FARGO LIMITED [2012] KEELRC 147 (KLR)

Industrial Court of Kenya
28 September 2012
BOByram Ongaya
3,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security guard's dismissal for alleged drunkenness was unfair because the employer had no proof, awarding him a full year's salary.

What this practically means

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Executive summary

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The claimant, a guard employed by the respondent from 1st April 2010 on a fixed-term contract, was summarily dismissed with effect from 13th June 2011 on the ground that he reported for duty intoxicated. He claimed a declaration that the termination was unlawful, unfair and inhumane, one month's salary in lieu of notice and twelve months' gross salary as compensatory damages. The respondent's Human Resource Officer conceded in evidence that no medical or scientific test verified the alleged intoxication, that the claimant was not late, disorderly or incapable of performing his duties, and that no witnesses were called at the disciplinary meeting. The court framed two issues: whether the employer had a valid reason for termination, and whether the claimant was entitled to the remedies prayed. Applying sections 43 and 45 of the Employment Act, the court found the respondent had failed to prove the reason for termination; the claimant's statement referred only to an 'alcohol scent' and showed he was in control of his faculties. The termination was therefore unfair under section 45(2). The court further held that where grounds for summary dismissal do not amount to proved gross misconduct, section 41's notification and hearing protections apply, and found the service agreement's lack of grievance and disciplinary procedures exposed the claimant to unfair labour practices contrary to Article 41(1) of the Constitution. Rejecting the section 45(3) thirteen-month threshold as unconstitutional, following Justice Lenaola in Samuel G. Momanyi, the court awarded Ksh.200,898.00 (notice pay, twelve months' gross salary and terminal dues), interest and costs.

Key legal issues

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01

Whether the employer proved a valid reason (intoxication) for summary dismissal

Holding

The respondent failed to prove intoxication; no medical or scientific verification was undertaken and the claimant was orderly and in control of his faculties.

Reasoning

Section 43(1) requires the employer to prove the reason for termination, failing which the termination is deemed unfair under section 45. Section 44(3) permits summary dismissal only for fundamental breach. The respondent's own witness confirmed no test, medical or otherwise, verified intoxication, and that the claimant was not late or disorderly. The claimant's statement referred only to an 'alcohol scent', not intoxication, and his ability to record statements showed he was in control of his faculties.

p. 4
02

Whether a hearing under section 41 is required before summary dismissal

Holding

Where the grounds do not amount to proved gross misconduct, the employee is entitled to the full protection of section 41 (notification and hearing); summary dismissal must be exercised sparingly and only in obvious cases of gross misconduct.

Reasoning

The court reasoned that where grounds genuinely constitute gross misconduct, section 41 does not apply, but once the existence of gross misconduct is disputed, the section 41 test applies. Because the reason for termination was found invalid, the claimant was entitled to notification and a hearing, which he did not receive.

p. 6
03

Whether section 45(3)'s thirteen-month threshold barred the claimant's unfair termination claim

Holding

The threshold does not bar the claim; the court upheld the High Court's finding that subsection 45(3) is unconstitutional as inconsistent with Articles 28, 41(1), 47, 48 and 50(1).

Reasoning

The claimant had served roughly fourteen months from April 2010 to June 2011 on a 12-month fixed term, but the court nonetheless addressed the threshold. Following Justice Lenaola's judgment in Samuel G. Momanyi, the court held that denying employees with shorter service the right to complain of unfair termination is blatant discrimination with no justification, inconsistent with the Constitution and section 5(2) of the Employment Act.

p. 6
04

Remedies for the unfair summary dismissal

Holding

The claimant was awarded one month's basic salary in lieu of notice (Ksh.7,323.00), twelve months' gross salary as compensatory damages for unfair termination, and Ksh.16,233.00 in admitted terminal dues, total Ksh.200,898.00.

Reasoning

Clause 7(b) of the service agreement entitled the claimant to one calendar month's notice or pay in lieu, which was not given. The respondent's own computation admitted Ksh.16,233.00 covering uniform deposit refund, unpaid leave of 28 days, overtime and overtime balance. The court then exercised its discretion to award the twelve months' gross salary claimed for unfair termination.

p. 6

Legal principles established

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  • The employer bears the burden of proving the reason for termination under section 43(1) of the Employment Act, and failure to do so renders the termination unfair under section 45.
  • An allegation of intoxication unsupported by medical or scientific verification, where the employee was orderly, punctual and capable of recording statements, is not a valid reason for summary dismissal.
  • Where grounds for summary dismissal do not amount to gross misconduct, the section 41 protections of notification and hearing apply.
  • Section 45(3)'s thirteen-month qualifying period is unconstitutional; employees with less than thirteen months' service may claim unfair termination.
  • Employers must provide fair grievance management procedures; their absence exposes employees to unfair labour practices contrary to Article 41(1) of the Constitution.

Court orders

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  1. 1.A declaration that the respondent's termination of the claimant's employment was unfair
  2. 2.The respondent to pay the claimant a sum of Ksh.200,898.00/= inclusive of the one month basic salary in lieu of notice, twelve months gross salary for unfair termination, and terminal dues as computed by the respondent
  3. 3.Interest on the award at court rates from the date of the judgment till full payment
  4. 4.The respondent to pay costs of the cause

Authorities

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Legislation

  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 44(3)
  • Employment Act, 2007Section 44(2)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 45(3)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 5(2)
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Articles 28, 41(1), 47, 48 and 50(1)

Cases cited (1)

  • Samuel G. Momanyi – Versus – The Honourable Attorney General and SDV Transami Kenya Ltd
    High Court Petition No. 341 of 2011
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 (summary dismissal and unfair termination provisions)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "LINUS BARASA ODHIAMBO V WELLS FARGO LIMITED [2012] KEELRC 147 (KLR)", Case Analysis (2012). Cause No 275 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/147/eng@2012-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.