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ELRCPartially AllowedCause Number 166 of 2011· [2013] KEELRC 144 (KLR)

Kenya Union Of Commercial, Food And Allied Workers [KUCFAW] v Daylite Drycleaners [2013] KEELRC 144 (KLR)

Industrial Court of Kenya
27 September 2013
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing a worker for refusing to work on a public holiday was unfair, and employers must follow written warning steps before dismissal.

What this practically means

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Executive summary

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The Industrial Court at Nairobi, presided over by Rika J, determined a dispute reported under the Trade Disputes Act, Cap 234, brought by the Claimant Union on behalf of its member, Emily Wagaki King'ori, a receptionist employed by the Respondent dry cleaner from 1st December 2000 until her summary dismissal on 13th October 2007, a public holiday marking Eid al-Fitr. The Respondent alleged the Grievant was insubordinate, incompatible and failed to report for duty when instructed. The Court upheld the recommendations of the Ministerial Investigator, except on overtime. It found termination was not based on a valid reason: the allegations of insubordination were vague, and employees are entitled to be off duty on public holidays and cannot be punished for declining to work on such days. The Respondent had also departed from the sequential written warning system, issuing no written warnings after 20th November 2006, and the Grievant was not given a hearing. The Court awarded four months' salary as compensation, one month's notice pay, and underpayment of wages under the Regulation of Wages (General) (Amendment) Orders, totalling Kshs. 69,948.50, and found service pay merited under the laundry industry regulation, unaffected by Section 35 of the Employment Act 2007, which was not in force at dismissal. The overtime claim of Kshs. 424,011.90 failed for lack of evidence and inconsistent testimony on hours of work. The Court made no order on costs.

Key legal issues

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01

Validity of the reason for summary dismissal

Holding

The termination was not based on a valid reason; vague allegations of insubordination and incompatibility were unsupported, and failure to report on a public holiday could not amount to lawful instructions disobeyed

Reasoning

The Respondent alleged insubordination and incompatibility but identified no specific lawful instructions from a person in authority that the Grievant received and dishonoured. The alleged instruction to report on Eid al-Fitr, a public holiday, could not be lawful since employees are entitled to be off duty on public holidays. The Respondent also never rebutted the Grievant's explanation that she was never asked to report that day.

p. 4
02

Procedural fairness and the warning system

Holding

The Respondent departed from the sequential written warning system; no written warnings issued between the 20th November 2006 warning and the dismissal, and the Grievant was not given a hearing

Reasoning

The warning system requires a first, second and final written warning before summary dismissal, giving the employee an opportunity to rectify their conduct. Verbal, unrecorded warnings do not satisfy this system. Mwangi conceded the Grievant was not given a hearing before termination and was not informed of the right to be accompanied by a colleague. With no written warnings within one year preceding dismissal, the summary dismissal was procedurally unfair.

p. 4
03

Overtime claim

Holding

The overtime claim failed for want of evidence and inconsistent testimony on the Grievant's hours of work

Reasoning

The Claimant's submissions before the Investigator stated a reporting time of 7.30 a.m., while the Grievant testified in court to 7.00 a.m., and it was unclear where the Investigator derived the reporting time. The Court found the Claimant's position on hours of work inconsistent and the Grievant's claim of working 7.00 a.m. to 6.00 p.m. Monday to Saturday throughout her employment unconvincing.

p. 4
04

Underpayment of wages and service pay

Holding

Underpayment of wages was demonstrated by the Regulation of Wages Orders, and service pay/gratuity was merited under the Regulation of Wages applicable to the laundry industry

Reasoning

The claim for underpayment of wages was clearly demonstrated by the various Regulation of Wages (General) (Amendment) Orders attached to the Memorandum of Claim. Service pay/gratuity was merited under the regulation applicable to the laundry industry, and the dismissal occurring before the Employment Act 2007 came into force meant Section 35 did not bar the claim.

p. 5

Legal principles established

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  • Employees are entitled to be off duty on public holidays and cannot be lawfully compelled, or punished for declining, to work on such days
  • The disciplinary warning system is sequential and contemplates written, not verbal unrecorded, warnings, with warnings having a lifespan of one year
  • A claim for service pay/gratuity is governed by the law in force at the time of dismissal; Section 35 of the Employment Act 2007 did not apply to a dismissal predating its commencement

Court orders

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  1. 1.A declaration that the termination was wrongful and unfair under Section 15 of the Trade Disputes Act Cap 234
  2. 2.The Respondent shall pay to the Grievant through the Claimant 4 months' salary compensation at Kshs. 36,809.20
  3. 3.The Respondent shall pay to the Grievant through the Claimant 1 month salary in lieu of notice at Kshs. 9,202.30
  4. 4.The Respondent shall pay to the Grievant through the Claimant underpayment of wages at Kshs. 23,937
  5. 5.The Respondent shall pay to the Grievant through the Claimant the total sum of Kshs. 69,948.50
  6. 6.No order on the costs

Authorities

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Legislation

  • Trade Disputes ActCap 234; Sections 8 and 15
  • Regulation of Wages (General) (Amendment) Ordersvarious
  • Employment ActSection 35
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap 234 (dispute reported to the Minister for Labour)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union Of Commercial, Food And Allied Workers [KUCFAW] v Daylite Drycleaners [2013] KEELRC 144 (KLR)", Case Analysis (2013). Cause Number 166 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/144/eng@2013-09-27

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