Daniel Ouma Orawo v Midrock Water Dlilling Company Limited [2015] KEELRC 375 (KLR)
The bottom line
#A Kenyan employer who fires an employee to investigate allegations must pay for unfair termination, and hiring the employee back later doesn't erase the mistake.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the termination of 11th October 2012
The termination was unfair as it was done to enable investigations without notice or hearing, contrary to section 41 of the Employment Act and Article 41 of the Constitution.
The Respondent admitted wrongly terminating the Claimant over alleged theft. Section 41 requires notice of misconduct and a hearing before termination. Where an employer suspects an employee, suspension pending investigations is permitted, and once cleared the employee must be recalled to answer allegations and give a defence. Terminating in order to investigate subverts due process and constitutes an unfair labour practice; the subsequent recall could not retroactively validate the dismissal.
Effect of recall/re-employment on terminal dues
Terminal dues fell due on 11th October 2012; the new employment should have commenced on 14th March 2013 on fresh terms, and the Claimant's failure to report back was separate misconduct.
Once terminated, the contract ended and terminal dues accrued. The agreement to pay arrears for the period away was irrelevant to a contract already terminated. The recall of 14th March 2013 amounted to an offer of fresh employment; the Claimant's refusal to resume without payment of arrears could not be treated as misconduct under the old, terminated contract.
Annual leave entitlement
Leave is not earned merely by travelling to the rural home; however, in the absence of employer records, leave was awarded limited to the 18-month statutory window under section 28.
The Claimant could not claim leave simply because he never went to his rural home; time off spent in Nairobi served the same purpose. Nevertheless, the employer bears the duty to keep leave records and none was produced. Section 28 caps retrospective leave claims at 18 months, so leave pay was awarded only within that period.
Overtime, Sunday and public holiday pay
Declined for want of proof; the Claimant had to articulate and prove the specific hours and days worked.
The claimed overtime hours of 5400 were unexplained in computation. The Claimant worked in a team, spent up to two months at the head office without a specific role, and the Respondent had a workplace policy on hours with breaks. The burden rested on the Claimant to prove Sunday and public holiday work; picking all Sundays in a calendar year without identifying actual days worked lacks merit.
Service pay/gratuity
Not due because the Respondent paid NSSF dues and this was not a redundancy.
Under section 35(6) of the Employment Act service pay is due, but not where the employee is a member of NSSF. Severance pay under section 40 arises only in redundancy, which this was not. The Claimant admitted in cross-examination that NSSF dues were paid.
Legal principles established
#- Before termination, the provisions of section 41 of the Employment Act must be followed; the employee must be issued with notice of the misconduct and heard.
- Suspension pending investigations is lawful, but once investigations clear the employee, recall and a hearing under section 41 are required; termination so as to commence investigations is an unfair labour practice.
- Recall or re-employment does not cure an unfair termination; terminal dues became due at the date of termination and any re-employment should have been on new terms.
- An employer bears the duty to keep records of leave days taken, but annual leave claims cannot go beyond 18 months under section 28 of the Employment Act.
Court orders
#- 1.Judgment entered for the Claimant in compensation of Kshs. 64,884.00
- 2.Notice pay at Kshs. 21,628.00
- 3.Leave pay at Kshs. 43,256.00
- 4.Costs shall not be awarded
- Jurisdiction invoked
- Article 41 of the Constitution and the Employment Act, 2007 (employment and labour relations jurisdiction of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Ouma Orawo v Midrock Water Dlilling Company Limited [2015] KEELRC 375 (KLR)", Case Analysis (2015). Cause No. 717 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/375/eng@2015-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.