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ELRCPartially AllowedCause No. 344 of 2014· [2015] KEELRC 121 (KLR)

Gerald Omullo Okinyo v Safepak Limited [2015] KEELRC 121 (KLR)

Employment and Labour Relations Court at Nairobi
2 December 2015
HWHellen S. Wasilwa
877 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 Safepak's worker was unfairly dismissed because he was never given a hearing, and awarded him 12 months' pay.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 27 February 2012 as a Machine Operator earning Kshs. 14,011 gross per month, sued for unfair and unlawful dismissal, alleging he was summarily dismissed on 27 December 2013 without a hearing, worked overtime and public holidays without compensation, and was never issued a formal contract. He sought compensation for unfair termination and one month's salary in lieu of notice. The Respondent denied the claim, asserting a formal contract existed, that overtime and public holiday work were compensated, and that the claimant was summarily dismissed for carelessly performing his duties, absenting himself, disobeying lawful commands, using abusive language towards his supervisor and ignoring prior warning letters. The court framed three issues: whether there were valid reasons for dismissal, whether due process was followed, and what remedies should be awarded. It held that although the reasons relied on could justify a normal termination, they did not warrant summary dismissal, and that the respondent had failed to give the claimant a hearing as required by Section 41 of the Employment Act, 2007. Finding the dismissal unfair and unwarranted, the court converted it to a normal termination and awarded the claimant twelve months' salary as compensation (Kshs. 168,132) and one month's salary in lieu of notice (Kshs. 14,011), totalling Kshs. 182,143, plus a Certificate of Service. The Respondent was ordered to meet the costs of the suit.

Key legal issues

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01

Validity of reasons for dismissal

Holding

The reasons given (disobeying commands, abusive language, sleeping on duty) could warrant termination but not summary dismissal

Reasoning

The court considered the respondent's allegations that the claimant disobeyed lawful commands, used abusive language and slept on duty, and that prior warning letters had been issued. It accepted that these reasons, if they existed, were adequate for ordinary termination but fell short of justifying summary dismissal.

p. 2
02

Compliance with due process under Section 41 of the Employment Act

Holding

The dismissal was unfair because the respondent failed to give the claimant a hearing before dismissal

Reasoning

The court applied Section 41 of the Employment Act, 2007, which obliges an employer to explain the reasons for termination in a language the employee understands and to hear and consider any representations before dismissing for misconduct. Since no hearing was accorded, the dismissal was procedurally unfair and unwarranted, justifying compensation.

p. 2

Legal principles established

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  • An employer must, before terminating or summarily dismissing an employee for misconduct, explain the reasons and hear the employee's representations as required under Section 41 of the Employment Act
  • Valid reasons for termination may justify a normal termination but not a summary dismissal where due process is not followed

Court orders

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  1. 1.The dismissal is converted to a normal termination
  2. 2.Respondent to pay 12 months' salary as compensation for unlawful and unfair termination (Kshs. 168,132)
  3. 3.Respondent to pay 1 month's salary in lieu of notice (Kshs. 14,011)
  4. 4.Claimant to be issued with a Certificate of Service
  5. 5.Respondent to meet costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over unfair and unlawful dismissal

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, "Gerald Omullo Okinyo v Safepak Limited [2015] KEELRC 121 (KLR)", Case Analysis (2015). Cause No. 344 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/121/eng@2015-12-02

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