Simon Otsieno Makanda & another v Kenya Motors And Equipments Limited [2013] KEELRC 629 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimants for insubordination was justified
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.
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.
Whether the Claimants were entitled to notice pay and overtime
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.
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.
Entitlement to gratuity
The claims for gratuity were abandoned as both Claimants were registered with NSSF and the employer had made all contributions.
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.
Legal principles established
#- 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
#- 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.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.The summary dismissal of each Claimant is substituted with normal termination of employment
- 4.Each party to bear its own costs of the suit
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction under the Labour Relations Act over employment disputes (Cause No. 519(N) of 2009)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.