Kennedy Owuoth Odhiambo v Tea Warehouse Limited [2016] KEELRC 1082 (KLR)
The bottom line
#A Kenyan court ruled that firing a sick worker without a hearing was unfair and awarded him over Kshs. 200,000 in compensation and dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively justified
The dismissal was not justified; the Claimant's illness was a lawful cause of absence, communicated to the Respondent through Mr. Bwire and the Senior Warehouse Supervisor
The Respondent alleged the Claimant absented himself and could not be reached, but led no evidence at trial. The Claimant testified he informed the Senior Warehouse Supervisor of his illness and forwarded medical records through Mr. Bwire, whom the Respondent itself sent to his house. The court found it untrue that the Respondent could not reach the Claimant or did not know why he was absent.
Whether the summary dismissal was procedurally fair
The dismissal was procedurally unfair; no charges were drawn, the Claimant was not asked to show cause, and no hearing of any sort was granted
Section 41 of the Employment Act requires notice and a hearing before termination on grounds of misconduct. The Respondent granted no hearing, drew no charges, and never asked the Claimant to show cause why disciplinary action should not be taken. The Claimant therefore discharged his onus of proving unfair termination under Section 47.
Quantum of compensation and other dues
The Claimant was awarded 8 months' gross salary as compensation, one month's notice pay, 20 days' September salary, and annual leave pay as prayed; overtime and general damages were rejected
Compensation of 8 months' salary was granted for the unfair dismissal. Annual leave pay was allowed because the Respondent failed to avail the Claimant's annual leave records. Overtime failed for want of evidence of when the excess hours were served, and general damages were refused as compensation had already redressed the economic injury.
Legal principles established
#- The employer bears the duty to demonstrate that termination is based on valid reasons and carried out fairly; the employee bears the onus of showing unfair termination
- To justify termination based on an employee's absence from work, the employer must demonstrate the absence is without leave or without lawful cause
- An employee must be heard and charged before termination; failure to grant a hearing renders dismissal unfair
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay 8 months' gross salary in compensation at Kshs. 165,272
- 3.1 month salary in lieu of notice at Kshs. 20,659
- 4.20 days' salary for September 2012 at Kshs. 15,891 (total Kshs. 201,822)
- 5.Full amount to be paid within 30 days of delivery of the Award
- 6.Certificate of service to issue under Section 51 of the Employment Act
- 7.Costs and interest at 14% per annum to the Claimant calculated from the date the Award is delivered
- Jurisdiction invoked
- Industrial Court [Procedure] Rules 2010, Rule 27[1][a]; dispute over unfair and unlawful termination under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Owuoth Odhiambo v Tea Warehouse Limited [2016] KEELRC 1082 (KLR)", Case Analysis (2016). Cause Number 206 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1082/eng@2016-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.