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ELRCPartially AllowedCause No 127 of 2013· [2013] KEELRC 960 (KLR)

Irene Chepngeno v Hi-Tech Opticians [2013] KEELRC 960 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
20 December 2013
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee's oral dismissal after she challenged a unilateral transfer was unfair, awarding her over Kshs.193,000.

What this practically means

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Executive summary

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The claimant, a sales lady employed orally by the respondent on 6.9.2007, sued for underpayments, notice pay, Saturday overtime, annual leave, maternity leave pay, June 2011 salary, 12 months' compensation under section 49(c) of the Employment Act, 2007, a certificate of service and costs. She testified she was never granted annual leave, was unpaid during her 2009 maternity leave and was forced back to work early, and that she resisted a 2011 transfer to Eldoret because the respondent failed to provide the agreed facilitation of Kshs.5,000.00 before and after travel. She was then barred from reporting at Nakuru (confirmed by RW3) and her employment was terminated orally. The respondent alleged she had absconded duty, and RW1's evidence on the transfer's purpose was contradictory - first customer-serving, then disciplinary. The court held that the agreed fixed salary plus commission arrangement defeated the underpayment and overtime claims, and that the June 2011 salary claim was abandoned. It allowed the annual leave claim (Kshs.33,333.30) and maternity claim (Kshs.30,000.00), each at Kshs.10,000.00 per month. It found the unilateral transfer an unfair labour practice, the grievance protected under section 46(h), and the termination procedurally unfair under section 41, awarding Kshs.130,000.00 covering 12 months' compensation and one month's notice pay. Judgment was entered for Kshs.193,333.30 payable by 15.2.2014 with interest on default, delivery of a certificate of service, and costs to the claimant.

Key legal issues

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01

Whether the claimant was entitled to underpayments and overtime

Holding

Claims failed; the agreed fixed salary and commission arrangement covered the extra hours and sales effort

Reasoning

The court considered the evidence and found that the parties had agreed upon a fixed salary with commission. The claimant testified she was satisfied with this remuneration system and had admitted working extra hours voluntarily to earn more commission. Because remuneration was commission-linked, working more yielded more pay, so underpayment and overtime claims had no basis.

p. 2
02

Whether the claimant was entitled to unpaid annual leave

Holding

Entitled as prayed; awarded Kshs.33,333.30 at Kshs.10,000.00 per month

Reasoning

The respondent bore the burden of showing that annual leave was accorded or paid in lieu and failed to do so. The claimant's unrebutted testimony was that throughout her service she was never granted annual leave nor paid in lieu. The court therefore awarded leave pay for the 3 years and 9 months at the last fixed monthly salary.

p. 3
03

Whether the claimant was entitled to maternity leave pay for three months

Holding

Entitled; awarded Kshs.30,000.00 at Kshs.10,000.00 per month

Reasoning

RW1 admitted that the claimant was not paid during maternity leave and was not accorded the three months statutory maternity leave. She had been constrained to resume duty before the maternity period lapsed because she was on unpaid leave. The court awarded three months' pay at the last fixed monthly salary of Kshs.10,000.00.

p. 3
04

Whether the termination was unfair and the claimant entitled to compensation and notice pay

Holding

Termination was unfair; awarded Kshs.130,000.00 (12 months' compensation plus one month in lieu of notice) at Kshs.10,000.00 per month

Reasoning

Transfer is a term of the contract and the claimant was employed to serve specifically at the Nakuru office. Unilaterally transferring her without agreed facilitation was an unfair labour practice. Her genuine grievance over facilitation was protected under section 46(h) of the Employment Act, 2007 and could not justify termination. The oral termination was also procedurally unfair for want of notice and hearing under section 41.

p. 3

Legal principles established

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  • An annual leave claim succeeds where the employer fails to establish that leave was accorded or paid in lieu
  • A unilateral transfer to a station other than that for which the employee was engaged, without agreed facilitation, is an unfair labour practice, and an employee's genuine grievance over such facilitation cannot found a valid termination
  • A termination effected without notice and a hearing is unfair under section 41 of the Employment Act, 2007

Court orders

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  1. 1.the respondent to pay the claimant Kshs.193,333.30 by 15.2.2014, failing, interest to be payable at court rates from the date of the judgment till full payment
  2. 2.the respondent to deliver to the claimant the certificate of service by 15.2.2014
  3. 3.the respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 49(c)
  • Employment Act, 2007section 46(h)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 51
  • Legal Notice No. 38 of 1.5.2006
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 (first-instance claim under sections 41, 46, 49 and 51)

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, "Irene Chepngeno v Hi-Tech Opticians [2013] KEELRC 960 (KLR)", Case Analysis (2013). Cause No 127 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/960/eng@2013-12-20

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