Linet Kadzo Kenga v Indiana Beach Apartment Hotel Limited [2015] KEELRC 773 (KLR)
The bottom line
#A Kenyan hotel cleaner unfairly dismissed after an injury won Kshs.321,250 because her employer failed to follow fair procedure and provide safe working conditions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly dismissed or deserted employment voluntarily
The Claimant was unfairly dismissed within the meaning of Section 45 of the Employment Act; she did not desert work.
The Claimant reported back with a doctor's recommendation for light duties but was barred from resuming duty in July 2008. The employer did not prove she was so incapacitated as to be unable to render any service, did not accord her a hearing under Section 41 before dismissal, and acted without medical advice. The alleged meeting of 6/8/2008 was unsigned and occurred after the dismissal. On a balance of probability the dismissal was unjustified and discriminatory on ground of ill-health.
Whether the employer was liable for the occupational disease (disc prolapse)
Liability established; the employer breached its common law and statutory duty to provide safe working conditions, and the Claimant was awarded general damages of Kshs.200,000.
The Claimant cleaned at least 12 rooms daily, made heavy beds and carried dirty linen from ground floor to the fourth floor without a trolley or lift, with no leave or rest days. The court found this was an unfair labour practice contributing to the occupational sickness. The duty of care is codified in Section 6(1) of the Occupational Safety and Health Act 2007. The court rejected the defence submission that damages were available only under WIBA, awarding common law damages subject to avoiding double benefit.
Assessment of reliefs for unfair termination
One month's salary in lieu of notice (Kshs.7,500), maximum 12 months' gross salary compensation (Kshs.90,000) and service pay of Kshs.18,750 awarded.
Section 49(1) of the Employment Act entitles an unjustifiably dismissed employee to notice pay, accrued benefits and up to 12 months' gross salary. The maximum was awarded because the Claimant may not secure other employment due to the health condition suffered in service, and the dismissal was founded on discrimination on ground of ill-health. Service pay was awarded at 15 days' salary per year for 5 years because NSSF remittances did not cover the entire service period.
Legal principles established
#- A dismissal on ground of illness is unfair where the employer fails to prove incapacity, fails to follow a fair procedure under Section 41 of the Employment Act, and acts without qualified medical advice, and may amount to discrimination on ground of ill-health.
- The court retains power to award general damages at common law for occupational disease notwithstanding WIBA, provided any WIBA award is taken into account to avoid double benefit.
- An employer owes a statutory duty under Section 6(1) of the Occupational Safety and Health Act 2007 to ensure the safety, health and welfare of all persons working in the workplace.
Court orders
#- 1.One month salary in lieu of notice of Kshs.7,500 awarded
- 2.Twelve months' gross salary (Kshs.90,000) as compensation for unfair and unjustified dismissal
- 3.Service pay of Kshs.18,750 awarded
- 4.General damages of Kshs.200,000 for the occupational disease awarded
- 5.Kshs.2,000 for the medical report and Kshs.3,000 for the doctor's court attendance awarded
- 6.Judgment entered for the Claimant in the sum of Kshs.321,250 plus costs and interest from the date of filing suit in March 2010
- 7.Prayer for refund of NSSF and NHIF deductions dismissed
- 8.Prayer for leave dismissed
- 9.Prayer for overtime dismissed
- Jurisdiction invoked
- First-instance claim for unfair termination and occupational disease under the Employment Act 2007 and related labour statutes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linet Kadzo Kenga v Indiana Beach Apartment Hotel Limited [2015] KEELRC 773 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/773/eng@2015-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.