Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 1452 (KLR)

Wisely Patrick Simasi & 8 Others v Lamathe Hygiene Food [2015] KEELRC 1452 (KLR)

Employment and Labour Relations Court
13 February 2015
2,504 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
Nine claimants sued their former employer, a restaurant, claiming accrued employment dues and compensation for unfair dismissal following events of 6.2.2014, when they reported to work but demanded to meet the Director to air grievances over wages, working hours and conditions before starting duties. They never resumed work; the respondent closed the hotel, hired new staff, and wrote to the Labour Officer on 6.2.2014 stating that the claimants had been summarily dismissed for participating in an illegal strike. The respondent contended the claimants were casual employees who downed tools without strike notice. The court found no dispute that an employment relationship existed and that the claimants downed tools on 6.2.2014. It held that the strike without notice was a valid and fair reason justifying summary dismissal, but that the procedure was flawed: the dismissal was communicated to the Labour Officer rather than to the claimants, the letter was served only on 13.2.2014, and the respondent failed to prove compliance with the hearing requirements of Section 41 of the Employment Act as required under Section 45. The dismissal was accordingly declared unfair. Each of the successful claimants was awarded one month's salary in lieu of notice, 63 leave days (limited to the three-year limitation period) and three months' salary as compensation. Claims for public holidays and rest days were dismissed for lack of particulars and improbability respectively, while overtime and underpayment were awarded only for the period May 2013 to February 2014. Judgment of Kshs.2,020,519 (excluding the settled claim of John Karisa Furaha) was entered, with costs and interest to the eight successful claimants.

Key legal issues

#
01

Whether the summary dismissal was fair

Holding

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

Reasoning

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.

p. 3
02

Whether the reliefs sought should be granted

Holding

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

Reasoning

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.

p. 3

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. 1.Judgment entered for all the claimants declaring their dismissal unfair
  2. 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. 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. 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.