Wisely Patrick Simasi & 8 Others v Lamathe Hygiene Food [2015] KEELRC 1452 (KLR)
The bottom line
#Even when employees strike without notice, Kenyan employers must still hear them out before dismissal, or the dismissal will be ruled unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was fair
Although there was a valid reason (strike without notice), the dismissal was procedurally unfair because the claimants were not accorded a hearing and the dismissal decision was communicated to the Labour Officer rather than to them
The court accepted that staging a strike without prior notice was a valid reason warranting summary dismissal under Section 44 of the Employment Act. However, summary dismissal for misconduct remained subject to Sections 41 and 45, which required fair procedure including a hearing. The dismissal was communicated only to the Labour Officer, and the letter was served on the claimants on 13.2.2014, after the fact. The respondent failed to prove compliance with Section 41, so the dismissal was unfair under Section 45.
Whether the reliefs sought should be granted
Notice pay, 63 leave days (within limitation period) and 3 months' compensation awarded to each claimant; overtime and underpayment awarded only for May 2013 to February 2014; public holidays and rest days claims dismissed
The court limited leave pay to the 3-year limitation period. Public holidays failed for lack of particulars and rest days failed because the court found it improbable that employees worked over four years without a rest day, the law entitling one rest day per week. Overtime and underpayment were restricted to the 9 months from May 2013 when the merged shift was introduced, since there was no evidence of when earlier salary reviews occurred relative to wage orders.
Legal principles established
#- An employer dismissing an employee for misconduct under Section 44 of the Employment Act must still comply with the fair procedure under Sections 41 and 45, including according the employee a hearing before dismissal; failure to prove such procedure renders the dismissal unfair.
- Participation in a strike without prior notice to the employer constitutes a valid and fair reason for summary dismissal.
Court orders
#- 1.Judgment entered for all the claimants declaring their dismissal unfair
- 2.Award of an aggregate judgment of Kshs.2,020,519 to be shared by all the claimants except John Karisa Furaha, as assessed per claimant
- 3.Each of the 8 successful claimants to receive one month salary in lieu of notice, 63 leave days, and 3 months salary as compensation for unfair termination, plus overtime and underpayment as assessed
- 4.Costs and interest awarded to the 8 successful claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wisely Patrick Simasi & 8 Others v Lamathe Hygiene Food [2015] KEELRC 1452 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1452/eng@2015-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.