Maurice Odhiambo Otwoma v Akshar Autospares Hardware Ltd [2013] KEELRC 907 (KLR)
The bottom line
#Even when an employee's misconduct justifies dismissal, Kenyan employers must still serve notice and give a hearing or the termination is unfair.
What this practically means
#Executive summary
#Key legal issues
#Overtime and underpayment claims
Both claims failed.
The claimant's own testimony established he worked 8 hours on weekdays and 5 hours on Saturdays and rested on Sundays, signed for the hours worked, and his evidence was contradictory. He produced no evidence of a change of designation from customer care officer (general labourer) to salesman, nor the fair pay he should have earned, so no basis for underpayment was shown.
Public holidays and annual leave claims
Both claims failed.
RW1, a supervisor, testified the respondent closed business on all public holidays and the court found no reason to doubt him. On the leave claim, the accountant relied on exhibits MFI 3, MFI 4 and MFI 5, and on a balance of probability the claimant's assertion of unpaid leave was found incredible.
Unfair termination
Termination was substantively justified by gross misconduct but procedurally unfair; compensation of Kshs.30,000.00 plus one month's pay in lieu of notice awarded.
The claimant knew the termination related to the events of 5.08.2011 when he advised a customer outside his authority, and his misconduct would be gross, entitling the respondent to fire him on shorter notice. However, the respondent did not serve any notice or accord the claimant a hearing as envisaged in section 41 of the Employment Act, 2007, rendering the termination unfair. Previous warnings were considered in fixing compensation at three months' gross salary.
Legal principles established
#- A termination may be justified on grounds of gross misconduct but still unfair if the employee was not served notice or accorded a hearing as envisaged in section 41 of the Employment Act, 2007.
- Where no termination notice was served, the employee is entitled to one month's pay in lieu of notice.
Court orders
#- 1.a declaration that the termination of the claimant's employment by the respondent was unfair
- 2.the respondent to pay the claimant Kshs.40,000.00 by 15.12.2013, in default interest at court rates to be payable till full payment
- 3.the respondent to pay 50% of the costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction over the employment claim (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maurice Odhiambo Otwoma v Akshar Autospares Hardware Ltd [2013] KEELRC 907 (KLR)", Case Analysis (2013). Not stated in the judgment (memorandum of claim filed 2.10.2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/907/eng@2013-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.