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ELRCPartially AllowedCause 1491 of 2011· [2013] KEELRC 438 (KLR)

JANE FRANCES OMINDE MUNYAKOH v IMAGING SOLUTIONS LIMITED [2013] KEELRC 438 (KLR)

Industrial Court of Kenya
26 February 2013
MMM. Mbaru
3,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, formerly of Kodak Kenya Limited, was employed by the respondent as an Administrative and Logistics Assistant from 22nd February 2005 at a monthly salary of Kshs.67,294.50 following a business outsourcing. On 22nd July 2011 she was summarily dismissed for being rude and using vulgar language toward her immediate supervisor (the Finance Manager) and refusing to attend to customer service calls unless asked by the MD. She claimed the dismissal was malicious and violated natural justice, seeking 12 months' compensation, notice pay and untaken leave days. The respondent justified the summary dismissal as insubordination and admitted owing one month's notice pay, 8 leave days and related dues, payable upon clearance with the Finance Manager. The court held that under Section 41(2) of the Employment Act, 2007 an employer must hear an employee before termination, even for gross misconduct, and the respondent neither pleaded nor proved that the claimant was heard; the dismissal was therefore procedurally unfair. On substance, however, the court found the claimant's conduct - bad language toward her supervisor and refusal to obey lawful work instructions - fell within Section 44(4)(d) and (e). Despite the procedural unfairness, only one month's salary was awarded as compensation, the court noting the claimant's demeanor and conduct. Notice pay and leave days, being admitted, were payable subject to statutory deductions. Each party was ordered to bear its own costs.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The dismissal was procedurally unfair because the respondent did not give the claimant an opportunity to make representations before the summary dismissal, contrary to Section 41(2) of the Employment Act

Reasoning

Section 44(4)(d) and (e) of the Employment Act permits summary dismissal for abusive/insulting language and refusal to obey lawful commands. However, before invoking Section 44(4), the employer is under a statutory obligation under Section 41(2) to hear the employee. The respondent did not plead nor adduce evidence that the claimant was given an opportunity to make representations. Procedural fairness derives from natural justice and applies even to gross misconduct cases, so the dismissal was procedurally unfair.

p. 3
02

Substantive justification for summary dismissal for insubordination

Holding

The respondent had grounds under Section 44(4)(d) and (e) since the claimant used bad language toward her supervisor and refused reasonable lawful instructions

Reasoning

The court observed the claimant's demeanor, noted she was agitated and overwhelmed by covering two departments, but found it highly possible she was rude to her supervisor. Her conduct in confronting the supervisor was disrespectful. Failure to respond to the supervisor and refusal to answer customer service calls amounted to disobedience of lawful orders within her duty, satisfying Section 44(4)(d) and (e) as grounds for summary dismissal.

p. 4
03

Entitlement to notice pay and untaken leave days

Holding

The respondent admitted notice pay of one month's salary and 8 leave days; the claimant was directed to collect these amounts

Reasoning

The Finance Manager confirmed the respondent owed one month's salary in lieu of notice (Kshs.67,294.50), 8 leave days (Kshs.24,470.72) less PAYE, totaling Kshs.70,312.00, payable upon clearance. The court accepted the 'clearance' practice as common among Kenyan employers and directed the claimant to collect the admitted dues.

p. 5

Legal principles established

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  • Under Section 41(2) of the Employment Act, 2007, an employer must notify the employee and hear any representations before terminating employment, even where summary dismissal for gross misconduct is contemplated or payment in lieu of notice is offered
  • For insubordination to justify dismissal it must be shown the employee deliberately refused a reasonable and lawful order, and the defiance must be gross - serious, persistent and deliberate

Court orders

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  1. 1.Declaration that the termination was unfair
  2. 2.Respondent to pay compensation of Kshs.67,296.50, subject to statutory deductions
  3. 3.Respondent to pay notice pay of Kshs.67,296.00, subject to statutory deductions
  4. 4.Respondent to pay leave days amounting to Kshs.24,470.72, subject to statutory deductions
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(d) and (e)
  • Employment Act, 2007Section 41(2)

Cases cited (3)

  • Rift Valley Textiles Limited v Edward Onyango Oganda
    Civil Appeal No. 27 of 1992
  • Ntsibamde versus Union Carriage & Wagon Co (Pty) Ltd
    (1993) 14 ILJ 1566 (I C)
  • Lynx Geosystem SA (PTY) Ltd versus Raynold Braacks and Others
    (2005) JR1935/05
Jurisdiction invoked
Original jurisdiction of the Industrial Court under the Labour Institutions Act over employment disputes (Cause filed in the Industrial Court of Kenya)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "JANE FRANCES OMINDE MUNYAKOH v IMAGING SOLUTIONS LIMITED [2013] KEELRC 438 (KLR)", Case Analysis (2013). Cause 1491 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/438/eng@2013-02-26

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