Robert Otieno Ochieng v Hotel Cathay Limited [2015] KEELRC 1117 (KLR)
The bottom line
#A Kenyan court ruled that even a DJ dismissed for absenteeism deserved a proper hearing first, awarding him Kshs 136,500.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally unfair
The dismissal was procedurally unfair because the Respondent failed to comply with section 41 of the Employment Act
The Respondent alleged absenteeism from 31 August 2013 and posted a dismissal letter. However, it did not show that it asked the Claimant to explain the absence or afforded him a hearing; no hearing venue, date or participants were disclosed. The court held that a hearing at the gate could not satisfy section 41. The employer bore the burden of proving procedural fairness and failed to discharge it.
Whether the Claimant had accrued leave
The Claimant was entitled to 21 days leave as of October 2011, 21 days as of October 2012, and 19 days pro rata leave as of September 2013 under the post-2010 contract
Section 28 of the Employment Act entitles an employee to at least 21 days annual leave with full pay for each completed year of service. The Claimant worked 4 days a week after 2010 but the court held this did not disentitle him to the statutory minimum leave. Leave under the original 2008 contract was not awarded as the November 2010 engagement was a new and distinct contract.
Whether the Respondent retained the Claimant's 700 CDs
The claim failed for lack of proof
The Claimant contended the Respondent kept his 700 music compact discs, which the Respondent's witness denied. On the material before the court the Claimant did not discharge the burden of proof, and the court was unable to find in his favour on this head.
Appropriate remedies
One month pay in lieu of notice (Kshs 21,000/-), 2.5 months wages for accrued leave (Kshs 52,500/-), 3 months gross wages as compensation for unfair dismissal (Kshs 63,000/-), totalling Kshs 136,500/-, plus a certificate of service and costs
Pay in lieu of notice flowed from section 35(1)(c) and the finding of unfairness, using the March 2013 basic pay of Kshs 21,000/-. Compensation of 3 months' gross wages reflected the length of service. Leave was assessed at 2.5 months' wages up to September 2013 under the distinct post-2010 contract.
Legal principles established
#- Before terminating employment, an employer must inform the employee of the reasons for the contemplated dismissal and hear any representations the employee may wish to make
- The employer bears the duty of proving compliance with the procedural fairness requirements of section 41 of the Employment Act
- Even summary dismissal on a ground under section 44 is subject to the procedural fairness requirements of section 41
- Annual leave of 21 days is a statutory minimum right that a contract cannot disentitle an employee to
- A certificate of service is a statutory right of an employee on separation
Court orders
#- 1.The Respondent to pay the Claimant 1 month wage in lieu of notice (Kshs 21,000/-)
- 2.The Respondent to pay the Claimant 2.5 months wages in lieu of leave (Kshs 52,500/-)
- 3.The Respondent to pay the Claimant 3 months gross wages as compensation (Kshs 63,000/-)
- 4.Total award of Kshs 136,500/- to the Claimant
- 5.The Respondent to issue the Claimant a Certificate of Service within 7 days
- 6.Claimant to have costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the employment dispute (Employment Act, 2007; pleadings and remedies framed under sections 28, 35, 41 and 44 of the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Otieno Ochieng v Hotel Cathay Limited [2015] KEELRC 1117 (KLR)", Case Analysis (2015). Cause No 128 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1117/eng@2015-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.