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ELRCAllowedMemorandum of Claim filed 29/6/2012 (number not stated in judgment)· [2015] KEELRC 1179 (KLR)

Calisto Oduol v Sameer Africa Limited [2015] KEELRC 1179 (KLR)

Industrial Court of Kenya
20 April 2015
1,436 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 awarded an employee over Kshs. 863,000 because his employer fired him without a hearing and without proving he did anything wrong.

What this practically means

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Executive summary

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The Claimant, employed as a stores clerk from 9/12/1998 and transferred from Nairobi to Eldoret in April 2011, was suspended on 18/4/2011 pending investigations into a system transfer of tyres from ABC Place to the central warehouse made on 10/3/2011, which had a discrepancy of five tyres. He remained on suspension for almost a year without any disciplinary hearing, and later learnt through his advocate that his services had been terminated. The Respondent's witness, Biketi Wanjofu, testified that he discovered the system transfer without corresponding physical documents, but admitted in cross-examination that the Claimant's role was limited to a systems transfer, that the transfer was approved by the acting warehouse manager Oscar Omenda, and that standard company procedure allowed transfer requests by telephone call or email. The court framed three issues: valid reasons for dismissal, due process, and remedies. On the first issue, the court held under Section 43 of the Employment Act that the employer failed to prove valid reasons, since the transfer was authorised by the manager and permitted by company rules. On due process, the court held that the admitted absence of a hearing contravened Section 41. Finding the dismissal substantively and procedurally unfair, the court awarded one month's salary in lieu of notice (45,400/=), 44 days' accrued leave (76,565/=), gratuity for unionisable service (196,297/=), general damages equivalent to twelve months' salary (544,800/=), totalling 863,062/=, plus a certificate of service and costs. Judgment was delivered on 20th April 2015 by Hellen Wasilwa, Judge.

Key legal issues

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01

Whether there were valid reasons to warrant dismissal of the Claimant

Holding

No valid reason existed; the tyre transfer was a system transfer authorised by the acting warehouse manager and permitted by the company's own rules, so the employer failed to prove valid grounds under Section 43.

Reasoning

The Claimant accepted making the system transfer but only after authorisation by warehouse manager Oscar Omenda, a fact not denied by the Respondent. The Respondent's own witness admitted the Claimant's role was limited to systems transfer and that standard procedure allowed requests by telephone or email. Since the employer could not prove reasons genuinely held at termination, the dismissal was unfair under sections 43 and 45 of the Employment Act.

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02

Whether due process was followed before the dismissal

Holding

Due process was not followed; the Claimant was never given a hearing, contravening Section 41 of the Employment Act.

Reasoning

The Respondent's witness (RW1) admitted in evidence that no hearing was given to the Claimant and that there was no evidence the Claimant was served with a dismissal letter. Section 41 obliges an employer to explain reasons for termination and to hear and consider the employee's representations before dismissal for misconduct. The Claimant remained on suspension for almost a year without any disciplinary hearing.

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03

Whether the Claimant is entitled to the remedies sought

Holding

Having found the dismissal unfair, the court awarded notice pay, accrued leave, gratuity, twelve months' general damages and a certificate of service.

Reasoning

Having found both substantive and procedural unfairness, the court exercised its remedial powers to compensate the Claimant: one month's salary in lieu of notice based on his salary of 45,400/=, 44 days' accrued leave valued at 76,565/=, gratuity for years served in unionisable terms of 196,297/=, and equivalent of twelve months' gross salary (544,800/=) as general damages for unfair termination, totalling 863,062/=.

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Legal principles established

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  • Under Section 43(1) of the Employment Act, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair under section 45.
  • Before terminating an employee for misconduct, the employer must explain the reasons to the employee and hear and consider any representations by the employee and a representative of their choice (Section 41, Employment Act).

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 45,400/= awarded to the Claimant
  2. 2.Leave earned up to 12th April 2012 (44 days) of Kshs. 76,565/= awarded
  3. 3.Gratuity for years served in unionisable terms of Kshs. 196,297/= awarded
  4. 4.General damages for unfair termination of 12 months x 45,400/=, being Kshs. 544,800/= awarded
  5. 5.Total award of Kshs. 863,062/= to the Claimant
  6. 6.Certificate of service to be issued to the Claimant
  7. 7.Costs to the Claimant

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Companies Actnull
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act (Industrial Court first-instance jurisdiction; specific provision not cited in judgment)

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, "Calisto Oduol v Sameer Africa Limited [2015] KEELRC 1179 (KLR)", Case Analysis (2015). Memorandum of Claim filed 29/6/2012 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1179/eng@2015-04-20

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