Simon Ndungu Kabau v Hillock Country Club [2014] KEELRC 934 (KLR)
The bottom line
#A Kenyan court ruled a chef's firing was unfair and ordered his employer to pay him over Kshs.190,000, mostly because the employer kept no proper records.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was a part-time employee
The claimant was a full-time employee; the employer's contradictory evidence and failure to produce employment records under sections 9 and 10 of the Employment Act meant it could not disprove the claimant's stated hours, and a person working 40 hours weekly is not a part-time employee.
The respondent's pleading said 8am-2pm, but RW1 testified 8am-12 noon. The employer produced no employment records despite the statutory duty under sections 9, 10(6) and 10(7) of the Employment Act to issue and retain contracts and particulars. Under section 10(7) the burden fell on the employer. The respondent also conceded the claimant worked 40 hours a week, which cannot be part-time employment.
Whether the claimant was unfairly terminated
The termination was unfair: the claimant was told not to report to work, was never informed of reasons, was never heard, and was not paid for days worked in August 2012.
RW1 admitted calling the claimant and directing him to report to the Westlands head office rather than to work. He reported severally without seeing the Director, received no response to a note left for the Director, and was never called. The court held this amounted to unfair dismissal for want of reasons and a hearing, plus non-payment of salary for days worked.
Entitlement to remedies
Awarded 5 days' salary (Kshs.2,833.30), accrued annual leave of Kshs.43,066.70, leave travelling allowance of Kshs.450, service pay of Kshs.25,500, six months' compensation of Kshs.102,000 and one month's notice pay of Kshs.17,000; dismissed overtime, housing allowance, severance pay and general damages claims.
Bank slips corroborated a salary of about Kshs.17,000 monthly. The Regulations of Wages (Hotels and Catering Trades) Order entitled him to 24 leave days yearly; he took none over 38 months. Service pay under section 35(5) was due as he was not in a pension scheme. Compensation under section 49(1)(c) considered length of service, manner of termination and casual terms. Overtime and general damages were not proved or recognised.
Legal principles established
#- Where an employer fails to provide a written contract or prescribed particulars, the burden of proving or disproving an alleged term of employment falls on the employer
- An employee working 40 hours a week is a full-time employee; the law prescribes maximum, not minimum, working hours
- Termination without informing the employee of reasons or giving an opportunity to be heard is unfair dismissal
- Service pay is payable under section 35(5) of the Employment Act to an employee not in a pension/gratuity scheme or NSSF, at 15 days' salary per year worked
Court orders
#- 1.Declaration that the termination of the claimant's employment by the Respondent was unfair
- 2.Award of Kshs.190,850.00 to the Claimant
- 3.Additional award of Kshs.10,000/= to cover filing, service and travelling expenses
- 4.Payment within 30 days from the date of judgment failing which execution to issue
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations claims (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Ndungu Kabau v Hillock Country Club [2014] KEELRC 934 (KLR)", Case Analysis (2014). Cause No 2353 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/934/eng@2014-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.