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ELRCPartially AllowedCause Number 527 of 2013· [2014] KEELRC 394 (KLR)

Linet Akasa Shikoli v Lilian Otundo [2014] KEELRC 394 (KLR)

Industrial Court of Kenya
30 June 2014
JRJames Rika
2,180 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 employer could fire a house help for gross misconduct but still had to pay her because no proper hearing was held.

What this practically means

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Executive summary

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The Claimant, a House Help employed by the Respondent from September 2006 at a final monthly salary of Kshs. 9,000, was summarily dismissed on 24th November 2012 after failing to answer her employer's calls during a birthday party held for the Respondent's child. She sought notice pay, service pay, annual leave pay, public holidays' pay, and compensation equivalent of 12 months' salary for unfair termination. The Respondent maintained the dismissal was for valid and fair grounds. The court found that the Claimant's refusal to answer her employer, without good reason and in front of guests, was an aggravated case of gross misconduct, giving the Respondent a valid reason to terminate under Sections 44(4), 43 and 45 of the Employment Act 2007. However, the Respondent failed to accord the Claimant the hearing guaranteed by Section 41 - no charges were read to her in a language she understood, and she was asked to leave the very next morning. Termination was therefore justifiable in substance but procedurally unfair, attracting minimal compensation of one month's salary (Kshs. 9,000). Notice pay was rejected because valid grounds for termination existed. Service pay of Kshs. 31,153 was awarded at 15 days' salary per completed year for 6 years, the employer not proving subscription to any social security plan. Annual leave pay of Kshs. 4,846 for 14 days was granted, but the claim for 54 public holidays was rejected as unjust given the Claimant's own 3-month absence without cause. The court awarded a total of Kshs. 44,999, made no order on costs and interest, and urged Kenya to ratify ILO Convention No. 189 of 2011.

Key legal issues

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01

Validity of the reason for summary dismissal

Holding

Valid reason existed - gross misconduct through insubordination

Reasoning

The court found the Claimant was called thrice by her employer in the presence of visitors and refused to answer, instead sending a colleague. Her explanations (washing utensils, painful foot) did not excuse the refusal. This constituted an aggravated case of gross misconduct under Section 44(4), satisfying Sections 43 and 45 on substantive justification.

p. 3
02

Fairness of the termination procedure

Holding

Termination procedurally unfair for lack of a hearing

Reasoning

Section 41 and 45 required a fair procedure. The employer did not grant a formal hearing; no charges were read to the Claimant in a language she understood; she was told the same night of the alleged offence to leave the following morning. The termination therefore did not conform to the Employment Act's procedural requirements, though the substantive reason was valid.

p. 4
03

Entitlement to service pay

Holding

Service pay awarded at 15 days' salary per completed year

Reasoning

The Respondent gave no evidence that the Claimant did not merit service pay under Section 35 by virtue of any social security plan, and was not shown to have been subscribed to NSSF. The Claimant completed 6 years of service and was paid nothing recognizing those years, so service pay at 15 days per year was computed at Kshs. 31,153.

p. 4
04

Annual leave and public holidays

Holding

14 days' annual leave pay awarded; public holidays claim rejected

Reasoning

The court believed the Respondent's evidence that all employees took annual leave in August and December, and that at exit the Claimant was owed only 14 days, valued at Kshs. 4,846. The claim for 54 unspecified public holidays failed because the Claimant had herself absented herself from duty for 3 months without cause, making compensation unjust.

p. 4

Legal principles established

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  • An employer who has valid reason for termination under Section 44(4) and Section 43 of the Employment Act must nonetheless accord the employee a hearing under Section 41 before summary dismissal; failure to do so renders the termination unfair though justified in substance.
  • Refusal by an employee to answer her employer's call, without good reason and in the presence of guests, amounts to gross misconduct justifying termination under Section 44(4) of the Employment Act 2007.
  • Service pay is due under Section 35 of the Employment Act unless the employer proves the employee was subscribed to a social security plan such as NSSF; years of service are not disregarded regardless of the manner of exit.
  • Kenya needs to ratify ILO Convention No. 189 of 2011 and legislate to secure full labour rights for domestic workers as demanded by the Convention and Article 41 of the Constitution.

Court orders

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  1. 1.The Respondent shall pay to the Claimant, within 30 days of the Award, 1 month salary in compensation at Kshs. 9,000
  2. 2.The Respondent shall pay service pay at Kshs. 31,153
  3. 3.The Respondent shall pay annual leave pay at Kshs. 4,846
  4. 4.Total award of Kshs. 44,999 payable within 30 days
  5. 5.No order on the costs and interest

Authorities

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Legislation

  • Employment ActSection 44[4]
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 35
  • Constitution of KenyaArticle 41
  • ILO Domestic Workers Convention No. 189 of 2011Entire instrument
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "Linet Akasa Shikoli v Lilian Otundo [2014] KEELRC 394 (KLR)", Case Analysis (2014). Cause Number 527 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/394/eng@2014-06-30

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