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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 39 (KLR)

Jackline Ochango v Godrick S Khisa t/a Kakamega Farmers Agency [2015] KEELRC 39 (KLR)

Employment and Labour Relations Court
11 December 2015
MOMAUREEN ONYANGO
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer won on the reason for dismissal but lost over KShs 115,000 because it skipped a fair hearing before firing the employee.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent's retail shop Kakamega Farmers Agency from 11th February 2011, sued for wrongful termination and unpaid terminal benefits arising from a 23rd February 2013 fight with her supervisor (RW 2), after which her family created a commotion at the shop. She sought a declaration that her dismissal was wrongful, special damages, 12 months' gross salary as compensation, costs and interest. The Respondent admitted employment, denied owing Kshs.177,350 and admitted only Kshs.18,893 in dues. The court framed three issues: the Claimant's designation, the fairness of the termination, and entitlement to reliefs. On the evidence, including the absence of an appointment letter and the Claimant's admission of lacking formal storekeeping training, the court found she was a shop assistant. Applying Sections 41, 43 and 44(4)(d) of the Employment Act, the court held there was a valid reason for summary dismissal (gross misconduct) but that the procedure adopted denied the Claimant a sufficient opportunity to defend herself. Because a valid reason existed, the claim for 12 months' compensation failed, as did the overtime and public holiday claims for want of proof. The court awarded Kshs.115,632.70 covering underpayments (Kshs.77,601.40, inclusive of 15% house allowance), annual leave (Kshs.13,092.75), service pay (Kshs.5,344), salary for 25 days worked (Kshs.8,906.60) and pay in lieu of notice (Kshs.10,687.95). The Respondent was ordered to pay the Claimant's costs, with no interest on the decretal sum or costs. Judgment delivered on 11th December 2015 by Maureen Onyango, Judge.

Key legal issues

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01

Designation of the Claimant - shop assistant or storekeeper

Holding

The Claimant was a shop assistant

Reasoning

The burden of proof lay on the Claimant. In the absence of a letter of appointment and clear evidence of her duties, and given her admission that she had no formal training as a storekeeper, the court found she was a shop assistant, which fixed the applicable statutory minimum wage for the underpayment computation.

p. 2
02

Whether the termination of employment was unfair

Holding

There was a valid reason for dismissal (gross misconduct) but the procedure denied the Claimant an opportunity to defend herself

Reasoning

Sections 41 and 43 of the Employment Act require procedural fairness and proof of a valid reason. The fight with the supervisor and the ensuing commotion constituted gross misconduct under Section 44(4)(d), justifying summary dismissal, but the process did not afford the Claimant a sufficient hearing.

p. 3
03

Entitlement to terminal dues and compensation

Holding

Claimant awarded underpayments, leave, service pay, salary for days worked and notice pay; no compensation for unfair termination, overtime or public holidays

Reasoning

Because a valid reason for dismissal existed, the 12 months' compensation sought was refused. Quantifiable dues (underpayments at statutory minimum rates with 15% house allowance, accrued leave at 1.75 days per month, service pay for one completed year, and notice pay) were awarded; overtime and public holiday claims failed on proof.

p. 3

Legal principles established

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  • Section 44(4)(d) of the Employment Act makes use of abusive or insulting language or insulting behaviour towards the employer or a person in authority gross misconduct justifying summary dismissal
  • An employee dismissed for valid reason is not entitled to compensation even where the procedure adopted was defective

Court orders

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  1. 1.The Respondent to pay the Claimant Shs.115,632.70 comprising underpayments, annual leave, service pay, salary for 25 days worked and pay in lieu of notice
  2. 2.The Respondent to pay the Claimant's costs of the suit
  3. 3.No interest on the decretal sum or on costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(4)(d)
  • Regulation of Wages (General) OrderWorking hours per week (52 hours)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act)

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, "Jackline Ochango v Godrick S Khisa t/a Kakamega Farmers Agency [2015] KEELRC 39 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/39/eng@2015-12-11

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