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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 956 (KLR)

Douglas Wanjohi Muchemi v Geoffrey Kibui Kamau T/A Hotel Starbucks [2016] KEELRC 956 (KLR)

Employment and Labour Relations Court
15 July 2016
BOBYRAM ONGAYA
946 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer must give notice and a hearing before firing even for misconduct, awarding the waiter Kshs.233,390 plus costs.

What this practically means

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Executive summary

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The claimant, employed as a waiter from 15.01.2013, was summarily dismissed by the respondent hotelier on 15.02.2015. He sued for declarations that his termination and the non-payment of terminal dues were unlawful, general damages for breach of contract, a certificate of service, and costs. The respondent alleged the claimant was dismissed on account of poor service, customer complaints and drunkenness, and that he had worked on temporary terms until October 2013. The court framed two issues: whether the termination was unfair, and the entitlement to compensation and other payments. On the first issue, the court found no notice or hearing preceded the dismissal, contrary to section 41 of the Employment Act, 2007, following Shankar Saklani v DHL Global Forwarding (K) Limited, and held the termination unfair. On quantum, the court found the claimant's admitted frequent shortages amounted to 50% contribution to the termination, awarding 6 months' gross salary (Kshs.51,000) instead of the 12 months claimed under section 49(1)(c), plus one month's pay in lieu of notice. Because the respondent failed to produce the workers' attendance register, the claimant's overtime claim of Kshs.161,990 was accepted on a balance of probability, and Kshs.11,900 was awarded as leave pay for two years. Severance pay was declined as there was no redundancy. Judgment was entered for the claimant for Kshs.233,390 payable by 01.09.2016, failing which interest at court rates would apply, together with a certificate of service and costs of the suit. The claim partially succeeded: the declaratory and monetary heads were granted but severance pay and full 12 months' compensation were refused.

Key legal issues

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01

Fairness of termination

Holding

Termination was unfair for want of notice and hearing under section 41 of the Employment Act, 2007

Reasoning

The employer terminated the claimant verbally on account of alleged poor performance and drunkenness without notice or hearing. Section 41 of the Employment Act requires notice and hearing even for summary dismissal. Following Shankar Saklani v DHL Global Forwarding, the court held the procedure adopted was invalid and the termination unfair.

p. 2
02

Quantum of compensation for unfair termination

Holding

Claimant awarded 6 months' gross salary (Kshs.51,000) with 50% contribution to termination, plus one month's pay in lieu of notice

Reasoning

The court considered the claimant's admitted frequent shortages recovered from his pay as constituting 50% contribution to the termination, reducing the maximum 12 months' compensation under section 49(1)(c) to 6 months' gross pay, and added one month's pay in lieu of notice.

p. 2
03

Overtime and leave pay; severance

Holding

Overtime of Kshs.161,990 and leave pay of Kshs.11,900 awarded; severance pay declined

Reasoning

The employer failed to produce the workers' job attendance register to disprove the overtime claim; in the absence of the employer's records the claimant's evidence was accepted on a balance of probability. Leave pay for 2 years was awarded. Severance pay was refused because there was no redundancy.

p. 2

Legal principles established

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  • Notice and a hearing are mandatory even in cases of summary dismissal, though the notice may be shorter than statutory or contractual prescription.
  • In the absence of the employer's records, an employee's testimony on overtime may establish the claim on a balance of probability.

Court orders

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  1. 1.Declaration that the respondent's termination of the claimant's contract of employment was unfair, unprocedural, wrongful and illegal
  2. 2.Declaration that the respondent's act of not paying the claimant his terminal dues was unlawful, illegal and amounted to breach of the contract of employment
  3. 3.Respondent to pay the claimant Kshs.233,390.00 by 01.09.2016 failing interest at court rates from the date of judgment till full payment
  4. 4.Respondent to deliver a certificate of service to the claimant by 01.09.2016
  5. 5.Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 49(1)(c)

Cases cited (1)

  • Shankar Saklani –Versus- DHL Global Forwarding (K) Limited
    [2012]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (not expressly cited with article/provision in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Douglas Wanjohi Muchemi v Geoffrey Kibui Kamau T/A Hotel Starbucks [2016] KEELRC 956 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/956/eng@2016-07-15

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