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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 1315 (KLR)

Robert Kenga & another v Ocean Sports Resort [2015] KEELRC 1315 (KLR)

Employment and Labour Relations Court
13 March 2015
5,656 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court found hotel staff were fairly dismissed for misconduct but still awarded them nearly Ksh.600,000 because the employer skipped a proper hearing.

What this practically means

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Executive summary

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Two hotel employees, Robert Kenga (Head Cashier) and Lilian Weddah (Head of Front Office), were summarily dismissed on 29/7/2013 for gross misconduct arising from the handling of Ksh.9,000 paid by two guests received at night by security guards, and related failures in guest registration. They sued for unfair termination, notice pay, salary underpayment under the CBA, service charge, leave dues and compensation. The court first found the claimants had proved unfair termination on a balance of probability, shifting the burden to the employer under Sections 45 and 47(5) of the Employment Act. On substance, the court held the employer genuinely believed the claimants' conduct constituted gross misconduct - the 1st claimant for holding unrecorded money for over two days and improperly opening a new receipt book, and the 2nd claimant for failing to escalate the unregistered guests despite a prior warning - satisfying the subjective test under Section 43(2). However, on procedure, the court held the questioning of the claimants on 25/7/2013 by the HRM and GM fell short of the mandatory requirements of Section 41, since the claimants were not alerted to a disciplinary hearing nor offered accompaniment by a union representative, rendering the dismissals procedurally unfair. Judgment was entered for the claimants in the aggregate sum of Ksh.596,565.95 plus costs and interest, comprising notice pay, service charge, leave dues, salary underpayment and six months' salary as compensation. Reinstatement, gratuity and general damages were refused, and proper certificates of service were ordered under Section 51(2).

Key legal issues

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01

Validity of reasons for dismissal

Holding

The respondent had a valid reason for dismissing both claimants for improper performance of duty.

Reasoning

The court found the 1st claimant kept Ksh.9000 in the safe for over two days without notifying management and improperly opened a new receipt book while another was running. The 2nd claimant failed to escalate the failure of guests to formally check in despite a prior warning. The employer was therefore entitled to conclude the conduct amounted to gross misconduct under Section 44(4)(c) and the employer's subjective genuine belief under Section 43(2) was satisfied.

p. 6
02

Procedural fairness under Section 41

Holding

The questioning of the claimants on 25/7/2013 did not amount to a fair hearing, rendering the summary dismissal unfair.

Reasoning

The employer must explain the reasons, allow an oral hearing in a language the employee understands with a union official or employee of choice present, and consider the defence before dismissal. The claimants were not alerted they were attending a disciplinary hearing nor offered accompaniment. No evidence proved a hearing within Section 41 was convened; post-dismissal conciliation could not cure the procedural unfairness.

p. 7
03

Remedies for unfair dismissal

Holding

Claimants awarded salary in lieu of notice, service charge, leave dues, salary underpayment and six months' salary as compensation under Section 49.

Reasoning

Compensation was reduced from the maximum because the claimants, as senior officers, contributed to their dismissal. Notice pay followed the CBA: two months for service under five years and three months for service over five years. Underpayment was calculated on the difference between actual pay and CBA rates. Certificates of service were mandated under Section 51(2).

p. 8

Legal principles established

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  • The burden of proving unfair termination rests on the employee, after which it shifts to the employer to justify the dismissal under Section 45 of the Employment Act.
  • Section 43(2) of the Employment Act renders the standard of proving the reason for termination a subjective test based on the employer's genuine belief.
  • A fair hearing under Section 41 must precede dismissal and cannot be cured by post-dismissal conciliation.
  • A certificate of service must not contain comments on the manner in which employment ended.

Court orders

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  1. 1.Judgment entered for the claimants in the aggregate sum of ksh.596,565.95 plus costs and interest from date of filing the suit
  2. 2.Award to Robert Kenga of Ksh.282,722 comprising 2 months notice, service charge, leave travelling allowance, leave balance, salary underpayment and 6 months' salary as compensation for unfair dismissal
  3. 3.Award to Lilian Weddah of Ksh.313,843.95 comprising 3 months notice, service charge, leave travelling allowance, pro-rata leave, salary underpayment and 6 months' salary as compensation for unfair dismissal
  4. 4.Respondent directed to forthwith issue the two claimants with proper certificates of service as prescribed by Section 51(2) of the Employment Act
  5. 5.Prayer for reinstatement disallowed
  6. 6.Prayer for gratuity by 2nd claimant and general damages by both claimants dismissed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Robert Kenga & another v Ocean Sports Resort [2015] KEELRC 1315 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1315/eng@2015-03-13

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