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ELRCPartially AllowedCause No. 1682 of 2011· [2015] KEELRC 124 (KLR)

Kenya Building Construction, Timber, Furniture And Allied Industries Employees Union v Odds and Ends Limited [2015] KEELRC 124 (KLR)

Employment and Labour Relations Court
1 December 2015
HWHellen S. Wasilwa
978 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 that firing an employee without a hearing and without proving misconduct is unfair, awarding the worker a year's salary in compensation.

What this practically means

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Executive summary

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The Claimant union, through its National General Secretary, sued on behalf of Grievant Michael Ogolla, a carpenter dismissed by the Respondent on 1/10/2008, claiming unlawful termination and terminal dues of Kshs. 200,945 comprising pay in lieu of notice, September salary, 3 days worked in October, accumulated leave, service pay and compensation. The Respondent, through Walker Kontos Advocates, admitted the termination but justified it on grounds that the Grievant absconded duty, failed to communicate his whereabouts, and that his medical documents were fake. The Grievant's supervisor, cross-examined, confirmed the Grievant had been given 5 days off on 15/9/2008 and a further 5 days on 20/9/2008. The court framed three issues: valid reasons, due process, and entitlement to the prayers. On reasons, it found the allegations of abscondment and working elsewhere unproven - the medical documents appeared genuine and no evidence showed them fake. On process, applying the inherent natural justice rule against condemning a man unheard, the court held the Grievant was terminated without a hearing despite the repeal of Employment Act Cap 226. It declared the termination unfair and unlawful and awarded Kshs. 186,000 (one month's notice pay, service pay for 3 years, September salary, and 12 months' compensation) less statutory deductions, plus costs to the Claimant. The award fell short of the sum claimed, and leave pay and the October days were not separately addressed.

Key legal issues

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01

Whether the Grievant was terminated for valid reasons

Holding

The reasons (abscondment and working elsewhere) were not valid as they were not established by evidence

Reasoning

The termination letter cited abscondment for two weeks and working elsewhere. The court found the Grievant had been given permission to seek medical treatment, evidenced by the salary advance mentioned in the letter, and had treatment notes showing he was given 5 days off on 15/9/2008 and again on 20/9/2008. The respondent led no evidence that the medical documents were fake, and none that the Grievant worked elsewhere. The allegations therefore failed.

p. 2
02

Whether due process was followed before termination

Holding

The termination was procedurally unfair because the Grievant was not heard

Reasoning

Although the termination occurred under the repealed Employment Act Cap 226, which lacked the procedural protections of the Employment Act 2007, the court held that the right to be heard is an inherent rule of natural justice. The Grievant was served with a termination letter without being heard and without the allegations of abscondment or working elsewhere being confirmed against him. The termination was therefore unfair and unlawful.

p. 2

Legal principles established

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  • An employer must establish valid reasons for termination with evidence; unproven allegations of abscondment or working elsewhere are not valid reasons
  • The right to be heard is an inherent rule of natural justice - an employee should not be condemned unheard before termination

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 12,000
  2. 2.Service pay for 3 years worked of Kshs. 18,000 (1/2 x 12,000 x 3)
  3. 3.September salary in full of Kshs. 12,000
  4. 4.12 months' salary as compensation for unlawful termination of Kshs. 144,000
  5. 5.Total award of Kshs. 186,000 less statutory deductions
  6. 6.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act Cap 226 (repealed)not specified
  • Employment Act 2007not specified
Jurisdiction invoked
Reference to employment dispute under the Employment Act following a certificate of failure to reconcile

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, "Kenya Building Construction, Timber, Furniture And Allied Industries Employees Union v Odds and Ends Limited [2015] KEELRC 124 (KLR)", Case Analysis (2015). Cause No. 1682 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/124/eng@2015-12-01

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