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ELRCPartially AllowedCause No 1384 of 2011· [2013] KEELRC 832 (KLR)

Elisha Odiwuor Okiya v Newline Limited [2013] KEELRC 832 (KLR)

Industrial Court of Kenya
9 October 2013
913 words in judgment
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The bottom line

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Even when an employer has a valid reason to fire someone, skipping the mandatory hearing makes the dismissal unfair and costly.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Driver in 2007 at a monthly salary of Kshs. 18,611, claimed unfair termination of employment following the termination of his employment on 4th January 2011 after failing to resume duty on 3rd January 2011. He sought 12 months' salary as compensation for unfair termination, unremitted NSSF contributions for 62 months, one month's salary in lieu of notice, and pay in lieu of one leave day. The Respondent maintained that the termination was for lawful cause and in compliance with the law, and that terminal dues had been offered but declined. The Court, per Linnet Ndolo, Judge, framed the main issue as whether the termination was justifiable. Applying Section 45(2) of the Employment Act, 2007, the Court found that the Claimant's unexplained absence on 3rd January 2011 gave the Respondent a valid reason to consider disciplinary action, since the Claimant produced no evidence beyond his own word that he had permission to be away. However, the Respondent failed the fairness test under Section 41 because it did not give the Claimant an opportunity to defend himself before termination. The termination was therefore found unfair for want of due process. The Court awarded the equivalent of 6 months' salary as compensation (Kshs. 111,666), one month's salary in lieu of notice (Kshs. 18,611) and pay in lieu of one leave day (Kshs. 716), totalling Kshs. 130,993. The claim for unremitted NSSF contributions failed as the Respondent proved remittance. Costs were awarded to the Claimant.

Key legal issues

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01

Whether the Respondent had a valid reason to terminate the Claimant's employment

Holding

The Respondent had a valid reason - the Claimant's absence from work on 3rd January 2011 - since the Claimant produced no evidence beyond his word that he had permission to be away.

Reasoning

It was not in dispute that the Claimant was absent from work on 3rd January 2011. He claimed his Supervisor, Jude Siata, allowed him one day off, but the Respondent denied granting permission and testified that Siata had no administrative authority to grant time off. Apart from his word, the Claimant produced no evidence confirming permission, so on balance the Respondent had a valid reason to consider disciplinary action.

p. 2
02

Whether the termination was effected through a fair procedure

Holding

The termination was procedurally unfair because the Claimant was not given an opportunity to defend himself as required by Section 41 of the Employment Act, 2007.

Reasoning

Although the Respondent established a valid reason, it summarily handed the Claimant a termination letter when he reported for duty on 4th January 2011 without hearing him. The Court could not tell whether a less severe disciplinary outcome might have resulted had the Claimant been heard. Fair procedure under Section 41 is therefore a mandatory requirement independent of the validity of the reason.

p. 2

Legal principles established

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  • Under Section 45(2) of the Employment Act, 2007, a termination is unfair unless the employer proves a valid reason, a fair reason related to conduct, capacity or compatibility or operational requirements, and fair procedure.
  • An employer who dismisses an employee without affording him an opportunity to defend himself fails the fairness test under Section 41 of the Employment Act, 2007.

Court orders

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  1. 1.Award of 6 months' salary compensation for unfair termination of Kshs. 111,666
  2. 2.Award of one month's salary in lieu of notice of Kshs. 18,611
  3. 3.Award of pay in lieu of one day's leave of Kshs. 716
  4. 4.Total award of Kshs. 130,993 to the Claimant
  5. 5.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
Jurisdiction invoked
Employment Act, 2007 (Sections 41 and 45(2)) - Industrial Court jurisdiction over unfair termination claims

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Elisha Odiwuor Okiya v Newline Limited [2013] KEELRC 832 (KLR)", Case Analysis (2013). Cause No 1384 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/832/eng@2013-10-09

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