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ELRCPartially AllowedMemorandum of Claim dated 25th June 2013 (ELRC, Nairobi) - number not stated in judgment· [2015] KEELRC 870 (KLR)

Samuel Omungala Olulungu v Designwear Limited [2015] KEELRC 870 (KLR)

Employment and Labour Relations Court
13 March 2015
MOMAUREEN ONYANGO
1,377 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 a furniture assembler's dismissal unfair because his employer fired him without a hearing or valid reason, awarding him compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent from May 2009 as an assembler of office furniture, sued for unfair dismissal and terminal benefits. He claimed one month's pay in lieu of notice (Kshs 11,954), twelve months' salary as compensatory damages, costs and interest. The respondent denied unfair dismissal, asserting the claimant was dismissed for absconding duty after being accorded a fair chance to defend himself, and sought dismissal of the claim. On 4th August 2012 the claimant fell ill at work, was permitted to leave after filling a leave form, and was diagnosed with malaria and typhoid. On his return on 7th August 2012 he was removed from the workplace by security guards, without notice or a hearing. RW1 admitted the meeting at which the decision was taken was held in the claimant's absence. The court, per Maureen Onyango J, held that valid termination requires both procedural fairness under Section 41 and valid reason under Section 43 of the Employment Act, and that failure to comply with either renders a termination unfair. The court found the respondent's minutes to be a fabrication, declared the termination unfair, and awarded Kshs 13,040 in lieu of notice and six months' salary (Kshs 78,240) as compensation, with interest from the date of judgment. The claimant's costs were awarded against the respondent. The claim succeeded in part, as the twelve-month maximum compensation sought was not granted.

Key legal issues

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01

Procedural fairness in termination

Holding

Termination was procedurally unfair because the claimant was not given a hearing as required by Section 41 of the Employment Act.

Reasoning

RW1 admitted under cross-examination that the meeting at which the decision to remove the claimant was made was held in his absence. The minutes attached to the Memorandum of Response contradicted RW1's own testimony and the court found them to be a fabrication. Even if the claimant was rowdy, Section 41 mandated a hearing before termination.

p. 3
02

Validity of the reason for termination

Holding

The stated reason (absconding duty) was not valid; the claimant had been granted permission on 4th August 2012, filled a leave form, and produced a doctor's letter excusing him for two days.

Reasoning

The court found no dispute that the claimant was granted permission and filled a leave form on 4th August 2012 and had explained he was given two days off by the doctor. RW1 should have allowed time to submit the doctor's letter rather than threatening to recover the days from his leave.

p. 2
03

Relief for unfair termination

Holding

One month's salary in lieu of notice (Kshs 13,040) and 6 months' salary as compensation (Kshs 78,240) awarded.

Reasoning

The notice pay was computed from the claimant's payslip at page 9 of the Memorandum of Claim. Compensation was limited to half the statutory maximum, taking into account the claimant's length of service (from May 2009) and the manner in which he was dismissed.

p. 3

Legal principles established

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  • Valid termination of employment requires both procedural fairness under Section 41 and valid reason under Section 43 of the Employment Act; failure to comply with either renders termination unfair.
  • Even where an employee is alleged to have behaved rowdily, an employer must accord him a hearing under Section 41 before termination.

Court orders

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  1. 1.Declaration that the termination of the claimant's employment was unfair
  2. 2.Award of one month's salary in lieu of notice of Kshs 13,040
  3. 3.Award of 6 months' salary as compensation for unfair termination in the sum of Kshs 78,240
  4. 4.Interest on the decretal sum at court rates from the date of judgment
  5. 5.Respondent to pay the claimant's costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41 and 43 invoked); no constitutional or statutory article expressly cited as the jurisdictional basis

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, "Samuel Omungala Olulungu v Designwear Limited [2015] KEELRC 870 (KLR)", Case Analysis (2015). Memorandum of Claim dated 25th June 2013 (ELRC, Nairobi) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/870/eng@2015-03-13

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