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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 1471 (KLR)

Erick Otieno Oduor v Ukwala Supermarket Ltd [2014] KEELRC 1471 (KLR)

Employment and Labour Relations Court
25 November 2014
HWHellen S. Wasilwa
1,037 words in judgment
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The bottom line

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A Kenyan court awarded a Naivas shop assistant Kshs 322,300 after he was dismissed without a hearing, ruling eating at work was not gross misconduct.

What this practically means

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Executive summary

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The claimant, Eric Otieno Oduor, sued in person claiming he was unlawfully terminated from employment as a shop assistant, where he earned Kshs 7,920/= plus house allowance and served as a shop steward. He alleged that a dispute with a supervisor, Ramesh, on 4.5.2013 led to a 7-day suspension, after which he was dismissed on 13.5.2013 for allegedly eating at the workplace, without a hearing and without his May salary. The respondents denied unfair termination, contending the claimant was indisciplined and involved in a fracas with his supervisor, refused to apologise, and declined to collect his terminal dues. The court framed three issues: valid reason, due process, and remedies. It held the fracas had been settled by the suspension and could not be reused, and that eating at the workplace was not gross misconduct warranting dismissal. On due process, the claimant was dismissed without any hearing, contrary to section 41 of the Employment Act, rendering the termination unfair and unlawful. The court awarded one month's pay in lieu of notice, 21 days' leave, service benefits for three years, 15 days' salary for May 2013, overtime for 2010 to April 2012, and twelve months' salary as damages for unlawful termination, totalling Kshs 322,300.90, subject to statutory deductions, together with a certificate of service. Judgment delivered by Hellen S. Wasilwa, Judge, on 25 November 2014.

Key legal issues

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01

Valid reason for termination

Holding

Eating at the workplace was not gross misconduct warranting dismissal; the earlier fracas had been settled by suspension.

Reasoning

The claimant explained the 4.5.2013 fracas by letter and served a 7-day suspension, which the court held settled that matter. The only remaining reason in the termination letter was eating in a place not assigned for meals, which the court found not to amount to gross misconduct justifying dismissal.

p. 2
02

Due process

Holding

The termination was unfair and unlawful because the claimant was not given a hearing as required by section 41 of the Employment Act.

Reasoning

The claimant was summarily dismissed without any hearing. Section 41 of the Employment Act entitles an employee to be heard before termination. The court found that denying this right rendered the termination unfair and unlawful, entitling the claimant to damages.

p. 2

Legal principles established

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  • A matter already resolved through suspension should not be resurrected as a ground for termination.
  • Failure to give an employee a hearing under section 41 of the Employment Act renders a termination unfair and unlawful.

Court orders

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  1. 1.1 month pay in lieu of notice of Kshs 9,108/=.
  2. 2.Leave due of 21 days at Kshs 14,712.90/=.
  3. 3.Service benefits of 15 days for each year worked (Kshs 9,108 x 0.5 x 3) = Kshs 13,662/=.
  4. 4.Salary earned for May 2013 for 15 days at Kshs 4,554/=.
  5. 5.Overtime for the period 2010 to April 2012 (45 hrs per week) at Kshs 170,968/=.
  6. 6.12 months salary as damages for unlawful termination = Kshs 109,296/=.
  7. 7.Total award of Kshs 322,300.90/= subject to statutory deductions.
  8. 8.Claimant to be issued with a certificate of service.

Authorities

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Legislation

  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)

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, "Erick Otieno Oduor v Ukwala Supermarket Ltd [2014] KEELRC 1471 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1471/eng@2014-11-25

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