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ELRCPartially AllowedCause No. 957 of 2013· [2015] KEELRC 696 (KLR)

Onesmus Munyalo v Tinnette Enterprises Limited [2015] KEELRC 696 (KLR)

Employment & Labour Relations Court
20 July 2015
NMNzioki wa Makau
2,508 words in judgment
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The bottom line

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A Kenyan court upheld a chef's dismissal but ordered his employer to pay notice and service pay it could not prove it had already settled.

What this practically means

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Executive summary

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The Claimant, a chef employed by the Respondent's fast food restaurant from April 2009 until November 2012 on a monthly salary of Kshs. 10,000/-, sued for salary in lieu of notice, service pay, overtime pay, compensation for unlawful termination, costs, interest and a certificate of service, alleging his termination breached Sections 41 and 45 of the Employment Act. The Respondent admitted the employment but asserted the termination was lawful, arguing the Claimant repeatedly told co-workers he possessed black magic powers linked to the deaths of two employees, causing staff to threaten resignation, and that it had paid him one month's salary in lieu of notice. The Claimant testified he was dismissed for asking for a raise, a matter not pleaded in his claim and treated by the court as an afterthought. The court held that although no employee of the Claimant's choice was present during the explanation of termination, in the circumstances—fellow staff being terrified of his alleged occult powers—the explanation given by the Respondent's managing director sufficed for Section 41, and the reasons for termination were justifiable. However, the Respondent failed to prove payment of terminal dues, and the court held payment in lieu of notice could not properly be made after the notice period had elapsed. The court awarded Kshs. 10,000/- notice pay and Kshs. 15,000/- service pay (15 days per year for three years) and a certificate of service, but rejected the overtime claim as implausible and undocumented, and ordered each party to bear their own costs.

Key legal issues

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01

Procedural fairness under Section 41 of the Employment Act

Holding

The explanation given by the Respondent's director sufficed; the employee could not have anticipated the safeguard of a companion because fellow staff were terrified of his purported powers

Reasoning

The court applied the Section 41 test: the employer must explain the reasons for termination in a language the employee understands and allow a companion of choice. Although the Claimant had no chosen companion present, in the peculiar circumstances—other employees fearing his alleged black magic—the explanation made by the director was held sufficient to satisfy procedural fairness, and the reasons for termination were found justifiable.

p. 4
02

Notice pay

Holding

The Claimant was entitled to Kshs. 10,000/- as notice pay as payment in lieu of notice had not been proved

Reasoning

The Claimant denied receiving notice pay and the Respondent had no proof of payment. The court held that payment in lieu of notice cannot be paid after service of one month; since the Claimant was told of the termination and let go home for some time before payment, there was no payment in lieu of notice.

p. 4
03

Overtime claim

Holding

Dismissed as unmerited

Reasoning

The court found it implausible that the Claimant worked every day from 7.00am to 9.00pm given the establishment served only lunch and dinner, no letter or document showed he sought overtime pay in three years, and he did not disown the payment slip produced in evidence.

p. 4
04

Service pay

Holding

Awarded at 15 days' pay per year worked, totalling Kshs. 15,000/- for three years

Reasoning

The Claimant claimed severance at the rate of 15 days for each year worked. With a monthly salary of Kshs. 10,000/-, this came to Kshs. 5,000/- per year, and over three years of service the court awarded Kshs. 15,000/- under this head.

p. 4

Legal principles established

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  • Payment in lieu of notice must be paid at or upon termination, not after service of the notice period
  • Section 41 of the Employment Act sets out the test for procedural fairness in termination, requiring explanation of reasons in a language the employee understands and entitlement to a companion of the employee's choice

Court orders

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  1. 1.Kshs. 10,000/- as notice pay
  2. 2.Kshs. 15,000/- as service pay
  3. 3.Certificate of service
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 10(7)
  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 43
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 45
  • Employment ActSection 45(2)(b) & (c)

Cases cited (1)

  • Harrison Meshack v Mareba Enterprises Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unlawful termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Onesmus Munyalo v Tinnette Enterprises Limited [2015] KEELRC 696 (KLR)", Case Analysis (2015). Cause No. 957 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/696/eng@2015-07-20

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