George Ochieng Owidi v Nyanza Reproductive Health Society [2016] KEELRC 68 (KLR)
The bottom line
#Kenya's Employment Court ruled that calling your boss a liar is not grounds for instant dismissal, and awarded the worker Kshs. 343,392 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively justified under Section 44(d) of the Employment Act
The dismissal was substantively unfair; describing a superior as a liar does not constitute abusive or insulting language warranting summary dismissal.
The Respondent relied on Section 44(d), the first limb of insubordination, covering abusive or insulting language. The court consulted Black's Law Dictionary definition of 'lie' and held that saying a superior told an untruth does not qualify as insubordination or abusive language. Following Abraham Gumba, an employer alleging insubordination must provide particulars, which was not done. Hence no valid reason existed.
Whether the dismissal procedure was fair
The dismissal was procedurally unfair, contravening Section 41 of the Employment Act and the Respondent's own HR Manual.
Section 41 mandates explanation of reasons in a language the employee understands, presence of a representative, and consideration of explanations. The summary disciplinary procedure adopted flew in the face of both the law and the Respondent's own Human Resource Policies and Procedures Manual. The Claimant was dismissed on the same day following a meeting without observance of these safeguards.
Remedies for unfair termination
Eight months' salary compensation, one month's notice pay and leave pay for 22 days awarded; claims for contract balance, leave allowance and increment dismissed.
Given findings of both substantive and procedural unfairness, the court awarded eight months' salary taking into account length of service and the Respondent's conduct. Leave pay succeeded because the Respondent produced no leave records to counter it. The contract-balance claim had no basis laid, and leave allowance and increment claims were unproved.
Legal principles established
#- An employer alleging insubordination as a ground for dismissal must provide particulars of the insubordination.
- Calling a superior a liar does not amount to abusive or insulting language justifying summary dismissal under Section 44(d) of the Employment Act.
- Section 41 of the Employment Act prescribes a mandatory procedure before termination on grounds of misconduct.
Court orders
#- 1.8 months' salary in compensation (Kshs. 282,240)
- 2.One month's salary in lieu of notice (Kshs. 35,280)
- 3.Leave pay for 22 days (Kshs. 25,872)
- 4.Total award of Kshs. 343,392
- 5.Award to attract interest at court rates from the date of the award until payment in full
- 6.Claimant to have the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Ochieng Owidi v Nyanza Reproductive Health Society [2016] KEELRC 68 (KLR)", Case Analysis (2016). Cause No 739 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/68/eng@2016-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.