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ELRCPartially AllowedCause No. 1491 of 2013 (Consolidated with Cause No. 1492 of 2013)· [2016] KEELRC 1240 (KLR)

Harun Charles Onsondo & another v Orbit Enterprises Limited [2016] KEELRC 1240 (KLR)

Employment and Labour Relations Court of Kenya
7 April 2016
MMM. Mbaru
1,636 words in judgment
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The bottom line

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Kenya's Employment Court ruled that even employees accused of absconding must be given a hearing before dismissal, but misconduct reduces their compensation.

What this practically means

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Executive summary

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Two welders employed by Orbit Enterprises Limited from 2010 claimed they were verbally dismissed on 6th June 2013 without notice, hearing or reasons, and sought rescission of the dismissal or compensation, terminal dues, salaries until retirement at 60 years, and costs. The Respondent denied any dismissal, contending the Claimants refused assigned work, used insulting language toward their supervisor, absconded duty, and had a history of participating in an illegal strike in March 2012. The Respondent's witnesses, including the shop steward, testified that a meeting was attempted on 6th June 2013 and later with the union, which the Claimants allegedly refused to attend. The court held that while the alleged misconduct could ground summary dismissal under section 44(4) of the Employment Act, the Claimants were entitled to a hearing under section 41(2), and no documented forum where they defended themselves was shown. The employer's duty to pursue and hear an errant employee could not be delegated to the union, as the employee is the right-holder. The dismissal was therefore procedurally unfair. Reinstatement was refused because trust between the parties had broken down. Under section 49, compensation was assessed with regard to prior misconduct: Ongondo, who had admitted gross misconduct in an unchallenged letter of apology dated 26th March 2012, received one month's pay (Kshs.12,305.00), while Mutune received three months' pay (Kshs.36,915.00). Each party was ordered to bear its own costs. Judgment delivered in open court at Nairobi on 7th April 2016 by M. Mbaru, Judge.

Key legal issues

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01

Procedural fairness of the termination

Holding

The Claimants were verbally dismissed without reason or hearing, rendering the dismissal procedurally unfair despite union involvement

Reasoning

Although the Respondent contended the Claimants absconded and the shop steward investigated, the court found no documented independent forum where the Claimants were given a hearing. The employer was obliged to pursue the employees, issue appropriate notice or a dismissal letter, and could not delegate this responsibility to the union.

p. 3
02

Sections 44(4) and 41(2) of the Employment Act - summary dismissal and hearing

Holding

Even where section 44 grounds (absconding, refusal to work, abusive language) apply, the employee must be given a hearing under section 41(2)

Reasoning

The court accepted that absconding duty, refusal to work or abusive language engage section 44(4), permitting summary dismissal with short notice. However, such an employee is still entitled to a hearing under section 41(2), and where a union exists the applicable agreement must be considered; neither was shown here.

p. 2
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Reinstatement as a remedy

Holding

Reinstatement declined due to breakdown of trust

Reasoning

Given the Respondent's assertions that the Claimants absconded, used abusive language and refused assigned work, the court held the employment relationship's trust was broken and reinstatement would not be conducive to a conducive working environment.

p. 3
04

Assessment of compensation under section 49

Holding

Compensation differentiated: one month's pay for Ongondo (prior misconduct) and three months' pay for Mutune

Reasoning

Ongondo had admitted misconduct by way of a letter of apology dated 26th March 2012 relating to plans for industrial action, which was unchallenged; this prior misconduct reduced his award. Mutune received three months' compensation.

p. 3

Legal principles established

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  • Where due process is not followed in terminating employment, compensation is due under section 49 of the Employment Act, and the employee's prior misconduct is a relevant factor in assessing the award.
  • An employer cannot merely assert that an employee absconded; the employer must demonstrate efforts to hear the employee, even where the employee is unionised.

Court orders

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  1. 1.Reinstatement refused; the Claimants shall not be reinstated
  2. 2.Charles Ongondo Haron awarded compensation of one month's pay at his last gross pay of Kshs.12,305.00
  3. 3.Joshua Mutune awarded 3 months' pay in compensation, being Kshs.36,915.00
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 44(4)
  • Employment Actsection 41(2)
  • Employment Actsection 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Harun Charles Onsondo & another v Orbit Enterprises Limited [2016] KEELRC 1240 (KLR)", Case Analysis (2016). Cause No. 1491 of 2013 (Consolidated with Cause No. 1492 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1240/eng@2016-04-07

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