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ELRCPartially Allowed· [2018] KEELRC 498 (KLR)

Bernard Marita v Charm Flowers Ltd [2018] KEELRC 498 (KLR)

Employment and Labour Relations Court
30 November 2018
BOBYRAM ONGAYA
541 words in judgment
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The bottom line

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A Kenyan court refused compensation for unfair dismissal because the employee's own refusal to follow valid work instructions caused the termination.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a general worker from 31.12.2009 to 02.11.2012, sued for outstanding wages on account of alleged underpayment, salary for August 2012, three months' notice pay, damages for wrongful and unfair termination under sections 49 and 50 of the Employment Act, 2007, punitive damages, a certificate of service and costs. The respondent sought dismissal of the claim with costs. The court framed two issues: whether the dismissal was unfair, and whether the claimant was entitled to the remedies prayed for. On the first issue, the claimant testified that he was assigned to construct a drainage system outside a greenhouse, did not complete the work, and was issued a termination letter after being branded 'bigheaded' by his supervisor. The court found the claimant had admitted failing to complete the assigned work and had walked away when directed to finish, disregarding valid and lawful instructions. The reason for termination was therefore valid under section 43 of the Act, and any notice and hearing under section 41 would have been superfluous. Further, the claimant fully contributed to his termination by misconduct and was undeserving of compensation under section 49. On remedies, the alleged underpayment was not established, wages having been paid per the collective agreement, and notice pay was refused. The claimant was awarded only a certificate of service under section 51, to be delivered within 7 days, with each party bearing its own costs. Judgment delivered at Nairobi on 30th November 2018 by Byram Ongaya, Judge.

Key legal issues

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01

Unfairness of termination

Holding

Termination was not unfair; reason valid under section 43 and claimant undeserving of remedies despite any section 41 non-compliance

Reasoning

The claimant admitted not completing assigned work and walking away when directed to finish, disregarding lawful instructions. This constituted a valid reason under section 43. The court held notice and hearing under section 41 would be superfluous given the undisputed reason, and that the claimant's own misconduct fully contributed to the termination, barring compensation under section 49.

p. 1
02

Entitlement to remedies

Holding

Only a certificate of service under section 51 awarded; all other reliefs refused

Reasoning

Having found no unfair termination, the court declined compensation, notice pay and punitive damages. Underpayment was not established as wages were paid per the collective agreement. The sole entitlement was a certificate of service under section 51 of the Employment Act.

p. 2

Legal principles established

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  • Where the reason for termination is valid and undisputed, notice and hearing under section 41 would be superfluous
  • An employee whose own misconduct fully contributed to termination may be undeserving of section 49 compensation

Court orders

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  1. 1.The respondent to deliver a certificate of service in 7 days
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007sections 41, 43, 49, 50, 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Bernard Marita v Charm Flowers Ltd [2018] KEELRC 498 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/498/eng@2018-11-30

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