Kenya Hotels & Allied Workers Union v Merryland Hotels Limited [2016] KEELRC 748 (KLR)

Section 41 of the Employment Act requires a fair hearing before dismissal. The Claimant denied being called to a disciplinary hearing on 16th September 2014. The Respondent produced neither the letter inviting the Grievant to the meeting nor the minutes, which were the documents that would have proved such a hearing. Since the burden of proof under section 41 lies on the employer, the failure to produce these records meant procedural fairness was not established.

Section 43 requires valid reasons for termination. The Grievant denied all three grounds - refusing lawful instruction, insolence and negligence. The Respondent's witness gave a different account of the disciplinary meeting but the Respondent did not disprove the Claimant's denials. The Grievant had worked for 10 years without disciplinary issues apart from an incident with a new accountant. The court therefore found the grounds unproved and the dismissal substantively unfair.

The Respondent's witness testified that the Grievant took annual leave and got alternative days off for public holidays, but no records were produced. Sections 10(6) and (7) and section 74 place the obligation to keep and produce records on the employer, and failure to produce them places the burden of disproving alleged terms on the employer. The Respondent also did not contest the tabulation of claims filed on 25th September 2015, leaving those prayers uncontested.

The Grievant was employed on 2nd March 2004 and dismissed on 24th September 2014, a period of about 10 years. His last salary was Shs.11,248.10 per the general order though he was paid Shs.6,000. Taking length of service and the circumstances of dismissal into account, the court considered him entitled to maximum compensation under section 49(1), awarding Shs.134,977.20 (12 months' gross pay) plus accrued dues.