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ELRCPartially AllowedCause No. 519(N) of 2009· [2013] KEELRC 629 (KLR)

Simon Otsieno Makanda & another v Kenya Motors And Equipments Limited [2013] KEELRC 629 (KLR)

Industrial Court of Kenya
25 June 2013
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled the workers' refusal to obey instructions justified termination, but the employer could not skip notice or compensation steps.

What this practically means

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Executive summary

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The Industrial Court at Nairobi, per Mathews N. Nduma, Principal Judge, delivered an award in a claim by two spray-painting employees, Simon Otsieno Makanda and Godfrey Elfasi Were, against Kenya Motors and Equipments Limited, challenging their summary dismissal for insubordination on 20/21 July 2009. The dispute arose from the Claimants' refusal to buff a customer's car; the Claimants maintained they had been instructed to use a sanding machine which would have scratched and damaged the vehicle, while the Respondent's Director testified that a buffing machine was available but they demanded a bigger one. The court found the two versions mutually destructive and preferred the Respondent's account as more credible. It framed two issues: whether the summary dismissal was justified, and what remedies were available. Applying sections 44(1), 44(3) and 44(4)(c) of the Employment Act 2007, the court held that the Claimants' wilful neglect of instructed work amounted to gross misconduct, and the employer was justified in terminating their employment; however, the possibility that the employer had failed to provide proper working tools was an extenuating circumstance, so summary dismissal was substituted with normal termination. The claim for compensation for unlawful dismissal was dismissed; the Claimants abandoned their gratuity claims, having conceded NSSF contributions were duly made. The court awarded each Claimant one month's salary in lieu of notice plus overtime for four extra hours worked on Saturdays over seven months in 2009 — Kshs. 17,000 for the 1st Claimant and Kshs. 18,700 for the 2nd Claimant. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the summary dismissal of the Claimants for insubordination was justified

Holding

The employer was justified in terminating the employment because the Claimants wilfully neglected to perform work they were instructed to do, but summary dismissal was not warranted; the dismissal is substituted with normal termination.

Reasoning

The court found the Respondent's version credible: the Claimants had an available buffing machine but declined to use it, demanding a bigger one. Their conduct fell within section 44(4)(c) as wilful neglect of duty. However, the employer's possible failure to provide adequate working tools was an extenuating circumstance, so the court substituted normal termination for summary dismissal and dismissed the claim for compensation for unlawful dismissal.

p. 3
02

Whether the Claimants were entitled to notice pay and overtime

Holding

Both Claimants were entitled to one month's salary in lieu of notice and unpaid overtime for four extra hours worked on Saturdays over seven months in 2009.

Reasoning

Having substituted normal termination for summary dismissal, the court awarded notice pay at the respective salaries of Kshs. 10,000 and Kshs. 11,000. Both Claimants proved they worked four extra hours every Saturday for seven months in 2009 without payment of overtime, which the Respondent did not dispute.

p. 4
03

Entitlement to gratuity

Holding

The claims for gratuity were abandoned as both Claimants were registered with NSSF and the employer had made all contributions.

Reasoning

The Claimants conceded during the proceedings that they were duly registered with NSSF and that all contributions had been duly remitted by the Respondent, thereby abandoning the gratuity claims. No order was made on that head.

p. 4

Legal principles established

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  • Summary dismissal is only justified where the employee's conduct amounts to a fundamental breach of contractual obligations; where the employer is justified in terminating but not in summary dismissal, the court may substitute normal termination.
  • An employee who wilfully neglects to perform work which it was his duty to perform commits gross misconduct justifying summary dismissal under section 44(4)(c) of the Employment Act, though mitigating circumstances may reduce the sanction.
  • Employees must obey lawful employer instructions unless compliance would be detrimental to their health or wellbeing; a demand for better tools does not justify open defiance.

Court orders

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  1. 1.The Respondent to pay the 1st Claimant, Simon Otsieno Makanda, one month's salary in lieu of notice in the sum of Kshs. 10,000 and Kshs. 7,000 being overtime for 4 hours worked on Saturdays in 7 months in the year 2009, total award Kshs. 17,000
  2. 2.The Respondent to pay the 2nd Claimant, Godfrey Were, one month's salary in lieu of notice in the sum of Kshs. 11,000 and Kshs. 7,700 being overtime for 4 hours worked on Saturdays in 7 months in the year 2009, total award Kshs. 18,700
  3. 3.The summary dismissal of each Claimant is substituted with normal termination of employment
  4. 4.Each party to bear its own costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 44(1)
  • Employment Act 2007Section 44(3)
  • Employment Act 2007Section 44(4)(c)
Jurisdiction invoked
Industrial Court of Kenya jurisdiction under the Labour Relations Act over employment disputes (Cause No. 519(N) of 2009)

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, "Simon Otsieno Makanda & another v Kenya Motors And Equipments Limited [2013] KEELRC 629 (KLR)", Case Analysis (2013). Cause No. 519(N) of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/629/eng@2013-06-25

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