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ELRCPartially AllowedNot stated in judgment· [2013] KEELRC 721 (KLR)

Kenya Union Of Domestic, Hotels, Educational Institutions Hospitals & Allied Workers v Windsor Golf Hotels & Country Club [2013] KEELRC 721 (KLR)

Industrial Court of Kenya
23 August 2013
RSRadido Stephen
1,485 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that sleeping on duty does not automatically justify summary dismissal—an employee with a mostly clean record should have been warned instead.

What this practically means

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Executive summary

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The Union filed a Memorandum of Claim on 26 May 2010 on behalf of its Grievant, Johannes Francis Obinya, a gas filter and refrigeration technician employed by Windsor Golf Hotels & Country Club from December 1991 until his summary dismissal on 22 August 2007 for allegedly being found asleep at midnight while on duty. The dismissal was effected under paragraph 12 of the Letter of Appointment, clause 9(d) of the Collective Bargaining Agreement and section 17(c) of the repealed Employment Act. The Cause was heard by Chemmutut J in March 2011, who ceased to hold office before delivering an award. The file passed through several judges (Marete J and Makau J) and locations before Radido J prepared and delivered judgment in Mombasa on 23 August 2013 based on the pleadings and proceedings taken before Chemmutut J, with the Union's agreement. The court held that while the Grievant could not be raised on the radio and was found asleep, sleeping on duty sits on a thin line with willful neglect, and he could have been given a warning instead, especially as he had one active warning letter in his file. The Joint Industrial Council's September 2008 recommendation that the dismissal be reduced to normal termination was adopted as fair. However, because only an extract of the CBA was exhibited, the court could not assess all contractual benefits, and awarded only four months pay in lieu of notice plus the items itemized in the dismissal letter, totaling Kshs 101,386/-. No costs were awarded and the file was to be transmitted back to Nairobi.

Key legal issues

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01

Whether being found asleep on duty amounts to willful neglect to perform work under section 17(c) of the repealed Employment Act

Holding

Sleeping on duty does not necessarily amount to willful neglect justifying summary dismissal; the employee could have been given a warning instead

Reasoning

The court held the distinction between sleeping at work and willful neglect is very thin. The Grievant could not be raised on the radio and was found asleep in the workshop, but he had only one active warning letter in his file. The Joint Industrial Council had recommended the dismissal be reduced to termination, which the court found fair and adopted.

p. 3
02

Entitlement to terminal benefits on substitution of summary dismissal with normal termination

Holding

The Grievant, having served 16 years, was entitled to four months pay in lieu of notice under clause 9(c) plus the items itemized in the dismissal letter

Reasoning

Because only an extract of the CBA was exhibited, the court could not determine full contractual benefits. It relied on clause 9(c) entitling the Grievant to four months pay in lieu of notice based on basic pay of Kshs 11,934/-, and awarded the payments itemized in the dismissal letter less lawful deductions, totaling Kshs 101,386/-.

p. 3

Legal principles established

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  • Sleeping in the workplace falls on a thin line between willful neglect and lesser misconduct warranting a warning rather than summary dismissal, especially where the employee had one active warning letter.
  • A recommendation by the Joint Industrial Council that a summary dismissal be reduced to normal termination may be adopted by the Court as fair.

Court orders

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  1. 1.Substitution of the summary dismissal of the Grievant into normal termination
  2. 2.Respondent to pay the Grievant 4 months pay in lieu of Notice (Kshs 47,736/-)
  3. 3.Respondent to pay wages up to 19 August 2007 (Kshs 7,553/-)
  4. 4.Respondent to pay 59 days accrued leave/travelling allowance (Kshs 23,470/-)
  5. 5.Respondent to pay 38 off days (Kshs 15,086/-)
  6. 6.Respondent to pay 19 days service charge for August 2007 (Kshs 7,541/-)
  7. 7.Total award of Kshs 101,386/- less any lawful deductions
  8. 8.No order as to costs
  9. 9.Deputy Registrar to transmit the file back to Nairobi after delivery of the judgment

Authorities

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Legislation

  • Employment Act (repealed)section 17(c)
  • Trade Disputes Act (repealed)Not specified
Jurisdiction invoked
Trade Disputes Act (repealed) - trade dispute reported to the Minister for Labour and referred to the Industrial Court

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 Domestic, Hotels, Educational Institutions Hospitals & Allied Workers v Windsor Golf Hotels & Country Club [2013] KEELRC 721 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/721/eng@2013-08-23

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