Irene Chepngeno v Hi-Tech Opticians [2013] KEELRC 948 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was entitled to underpayments and overtime
Claims for underpayment and overtime failed because the parties had agreed a fixed salary plus commission, which the claimant accepted; extra hours were worked voluntarily to earn more commission
The court considered the evidence and found the remuneration was a bargained package of fixed salary and commissions. The claimant admitted satisfaction with the system and voluntarily worked through lunch hours to increase commission. Absent agreement on overtime pay, the claims could not stand.
Whether the claimant was entitled to annual leave pay
Awarded Kshs.33,333.30 as the respondent failed to establish the claimant was accorded leave or paid in lieu
The burden lay on the employer to prove leave was granted or paid for. No records or evidence established this, so the claimant was entitled as prayed, computed at her last fixed monthly salary of Kshs.10,000.00 per year for 3 years and 3 months' equivalent awarded.
Whether the claimant was entitled to maternity leave pay
Awarded Kshs.30,000.00 as RW1 admitted she was unpaid and denied the three months' statutory maternity leave
RW1 conceded the claimant received no pay during maternity and resumed duty before the statutory period lapsed. The entitlement was computed at Kshs.10,000.00 per month for the three months of statutory leave denied.
Whether the termination was unfair and the compensation payable
Termination was unfair: the unilateral transfer was an unfair labour practice; the grievance was not a valid ground for termination under section 46(h); and there was no notice or hearing under section 41
Transfer is a contractual term, and the claimant was employed to serve the Nakuru office specifically, so the unilateral transfer to Eldoret was an unfair labour practice. Her grievance over non-facilitation was genuine and protected by section 46(h). The oral termination was without notice and hearing, contrary to section 41. She was awarded 12 months' compensation of Kshs.130,000.00 plus one month's pay in lieu of notice.
Legal principles established
#- Transfer is a term of the contract of employment and a unilateral transfer to a station other than that for which the employee was engaged constitutes an unfair labour practice
- An employee's genuine grievance over non-facilitation cannot constitute a valid ground for termination under section 46(h) of the Employment Act, 2007
- A termination effected orally without notice and a hearing offends section 41 of the Employment Act and is unfair
Court orders
#- 1.The respondent to pay the claimant Kshs.193,333.30 by 15.2.2014, failing which interest at court rates from the date of judgment till full payment
- 2.The respondent to deliver to the claimant the certificate of service by 15.2.2014
- 3.The respondent to pay costs of the suit
- Jurisdiction invoked
- Employment Act, 2007 (including sections 41, 46(h), 49(c) and 51); original employment dispute jurisdiction of the Industrial Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irene Chepngeno v Hi-Tech Opticians [2013] KEELRC 948 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/948/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.