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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 576 (KLR)

Bernard Juma Oyieyo v Karia Supermarket Limited [2018] KEELRC 576 (KLR)

Employment and Labour Relations Court
23 November 2018
OMONESMUS N. MAKAU
3,055 words in judgment
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The bottom line

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A Kenyan court can rule your dismissal was unfair even when the employer had a genuine reason, if no hearing happened first.

What this practically means

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Executive summary

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The claimant, employed from 7.1.2002 as a Shop Attendant earning Kshs.13,000 per month, sued for wrongful and unfair dismissal on 13.3.2013, initially claiming Kshs.1,636,397 reduced on amendment to Kshs.1,069,267. The respondent contended he was summarily dismissed for absenting himself from work and lying about why he did not answer calls, asserting valid reason and due process. The court framed two issues: whether the termination was unfair and whether reliefs should be granted. It held that absence from the work station was a valid reason for summary dismissal under section 44(4)(a) of the Employment Act, and that the respondent proved and justified the reason under sections 43, 45(2)(a) and 47(5). However, the mandatory hearing procedure under section 41 was not followed, and the employer failed to discharge its burden under section 41(2)(c), rendering the dismissal procedurally unfair. On estoppel, the court found the 27.4.2013 settlement agreement, under which the claimant received Kshs.48,403, was not mutually negotiated, contained errors, and did not include all entitlements, so the claimant was not barred from further claims. Reliefs: six months' salary compensation for unfair termination (Kshs.78,000) and leave for 2004 and 2007 (Kshs.20,999), totalling Kshs.98,999 subject to statutory deductions. Claims for March and April salary, overtime and house allowance were dismissed for lack of proof. Judgment was entered for the claimant with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether there was a valid reason for the termination

Holding

Absence from the work station without permission was a valid reason for summary dismissal under section 44(4)(a) of the Employment Act.

Reasoning

The defence witnesses Rw1 and Rw2 found the claimant absent from his appointed place of work on 13.3.2013. The court found the offence of absconding obvious and held that the respondent discharged its burden of proving and justifying the reason for dismissal as required by sections 43, 45(2)(a) and 47(5) of the Employment Act.

p. 3
02

Whether the procedure followed was fair

Holding

The termination was procedurally unfair because the employer did not accord the claimant a hearing as required by section 41.

Reasoning

Section 41 requires the employer to explain the reason for termination in a language the employee understands and to invite representations before deciding. The court found the mandatory procedure was not followed and the employer failed to discharge its burden under section 41(2)(c) on a balance of probability, rendering the abrupt termination unfair despite a valid reason.

p. 3
03

Whether the settlement agreement of 27.4.2013 barred the claim

Holding

The claimant was not estopped because the agreement was not mutually negotiated, contained errors, and did not include all entitlements.

Reasoning

The claimant testified he was given a computed form and required to sign or get nothing, signing under family pressure. The respondent's own witness admitted errors in the items paid. The court, fortified by Peter Mwangi Maina v Equitor Bottlers, held the claimant not estopped from claiming reliefs beyond the sum paid.

p. 3
04

What reliefs should be granted

Holding

One month's salary in lieu of notice plus six months' salary compensation, and leave for 2004 and 2007 at 21 days per year, were awarded; other heads were dismissed.

Reasoning

Under sections 49(1) and 50 the court awarded notice pay and six months' compensation, factoring in the 12-year service period and the claimant's contribution to his termination through misconduct. Notice pay was cancelled by the Kshs.13,000 erroneously described as service pay. Claims for March/April salary, overtime and house allowance failed for lack of proof.

p. 3

Legal principles established

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  • Termination of employment is unfair where the employer fails to prove both valid and fair reasons and a fair procedure including a hearing.
  • The burden of proving compliance with the hearing requirement under section 41 lies on the employer; absence of a hearing renders the dismissal unfair even if a valid reason exists.
  • A settlement/full-and-final-payment agreement signed by an employee does not estop claims where it was not mutually negotiated and did not include all entitlements.
  • Where an employer fails to produce leave records, the employee's claim for unutilised leave is granted at 21 days per year.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for Kshs.78,000 being compensation for unfair termination
  2. 2.Kshs.20,999 awarded for 42 leave days for 2004 and 2007
  3. 3.Total award of Kshs.98,999 payable subject to statutory deductions
  4. 4.Costs of the suit awarded to the claimant with interest at court rates from the date of the judgment

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 44(4)(a)
  • Employment Actsections 43, 45(2)(a) and 47(5)
  • Employment Actsection 41 and 41(2)(c)
  • Employment Actsections 49(1) and 50
  • Employment Actsection 28
  • Employment Actsection 10(7)

Cases cited (2)

  • Waandhish Limited Vs Elizabeth Masila & 4 Others
    [2009] eKLR
  • Peter Mwangi Maina Vs Equitor Bottlers Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Bernard Juma Oyieyo v Karia Supermarket Limited [2018] KEELRC 576 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/576/eng@2018-11-23

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