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ELRCPartially AllowedCause No. 15 of 2017 (consolidated with Causes No. 16 and 17 of 2017)· [2018] KEELRC 110 (KLR)

Omar Ali Duba & 2 others v Fuatana Hotel [2018] KEELRC 110 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
6 December 2018
1,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court awarded three hotel workers their unpaid dues but refused overtime claims that were unclear or contradictory, even though the employer never showed up.

What this practically means

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Executive summary

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Three consolidated claims (Causes No. 15, 16 and 17 of 2017) were brought by Omar Ali Duba, Osman Otieno and Lucy Wairimu Maina against Fuatana Hotel, a Nakuru hotel business, for terminal dues and compensation for unfair termination. All three were casual employees hired between 2013 and 2014 at daily wages. On 1st August 2015 the business closed temporarily owing to a misunderstanding with the landlord and the employees were laid off; Omar and Lucy were recalled in 2016 and thereafter dismissed without notice or a hearing. The respondent did not enter appearance or file a defence, and the claims were heard ex parte under Rules 15 and 23 of the ELRC (Procedure) Rules, 2016, prosecuted through the evidence of Omar. The court held that upon lay-off, regulated under section 40 of the Employment Act, 2007, the respondent should have paid all dues owing, and that leave is due under section 28. It further held that summary dismissal under section 44 must be read with section 41(2), requiring notice and a hearing, so the dismissals of Omar and Lucy were unfair. However, the overtime claims failed because the pleaded template contradicted and was never clarified by the oral evidence, and compensation for unfair termination beyond terminal dues was refused as the dues awarded were deemed sufficient. Judgment was entered for the claimants in specified sums, with certificates of service to issue.

Key legal issues

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01

Entitlement to terminal dues upon lay-off

Holding

Employees laid off are entitled to off days earned and not taken, overtime for hours worked, and leave days not taken

Reasoning

The respondent's business closed temporarily due to a misunderstanding with the landlord. Lay-off is regulated under section 40 of the Employment Act, 2007, and the respondent should have paid all dues owing as of that date. The facts of the lay-off were not challenged, so the claims for off days and leave succeed.

p. 2
02

Unfair termination for want of notice and hearing

Holding

Termination without notice or a hearing was unfair, entitling the employees to notice pay and other dues

Reasoning

Section 44 permitting summary dismissal must be read with section 41(2), which requires the employer to issue notice and hear the employee. With no proof of notice or a hearing, the dismissals of Omar and Lucy were unfair termination of employment.

p. 3
03

Proof of overtime claims

Holding

The overtime claims failed because the pleaded template contradicted and was not clarified by the oral evidence

Reasoning

The claimants pleaded working 6 days with overtime and on Sundays without clarifying whether Sunday was over and above the 6 days. Omar had the chance to clarify how overtime arose but did not; even without a defence, such claims must fail.

p. 3
04

Limitation timelines

Holding

All three claims were filed within the requisite timelines

Reasoning

Omar and Lucy were recalled to work on 1st April 2016 and the claim was filed on 27th February 2017; Osman was laid off on 1st August 2015 and filed on the same day as the others, placing all claims within time.

p. 2

Legal principles established

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  • Summary dismissal under section 44 of the Employment Act must be read together with section 41(2), requiring notice and a hearing before dismissal
  • Upon lay-off regulated under section 40 of the Employment Act, the employer must pay out all dues owing as at the date of lay-off
  • Where a respondent fails to defend, the court assesses claims on the pleadings and evidence, and unclarified or internally contradictory claims must fail even undefended

Court orders

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  1. 1.Judgment entered for the claimants against the respondent: Omar Ali Duba awarded notice pay Ksh.15,000, salary arrears Ksh.10,000, pay for off days due Ksh.40,000, and pay for work during public holidays Ksh.13,000
  2. 2.Osman Otieno awarded unpaid off days Ksh.34,000 and unpaid leave Ksh.24,150
  3. 3.Lucy Wairimu awarded notice pay Ksh.9,000, salary arrears Ksh.3,900, house allowance due Ksh.10,350, off days due Ksh.21,600, and pay for public holidays Ksh.6,600
  4. 4.The claimants to be issued with Certificates of Service

Authorities

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Legislation

  • Employment Act, 2007section 40
  • Employment Act, 2007section 28
  • Employment Act, 2007section 44
  • Employment Act, 2007section 41(2)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 15 and 23
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rules 15 and 23

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, "Omar Ali Duba & 2 others v Fuatana Hotel [2018] KEELRC 110 (KLR)", Case Analysis (2018). Cause No. 15 of 2017 (consolidated with Causes No. 16 and 17 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/110/eng@2018-12-06

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