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ELRCDismissedCause No 1164 of 2015· [2019] KEELRC 151 (KLR)

Janet Asamba Omodi v Fairmont Hotels & Resorts (E. A) Ltd [2019] KEELRC 151 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
22 November 2019
ANAbuodha Jorum Nelson
2,520 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a hotel executive's unfair termination claim because her dispute fell under the old Employment Act, which offered far weaker remedies.

What this practically means

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Executive summary

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The claimant, employed in September/October 2006 as Director of Sales and Marketing (East Africa), sued the respondent hotel claiming that its Managing Director undermined and usurped her functions, employed staff in her department without her knowledge, and unlawfully terminated her services on 9th June 2008 after sending her home on 27th May 2008. She sought a declaration that the termination was illegal and null and void, unconditional reinstatement, alternatively Kshs. 14,108,167 being loss of income, maternity, medical, vacation and car allowances, salary for Zanzibar duties and pay in lieu of notice, plus accrued leave and car expenses. The respondent denied the claims, asserting a mutual breakdown of trust, the claimant's walk-out and abscondment, proper hearings on 29th May and 5th June 2008, and a termination in accordance with clause 5.3 of her contract with an exit package offered. By consent, oral evidence was dispensed with and the parties filed submissions. The court held that the dispute was governed by the repealed Employment Act, under which there was no compensation for unfair termination and none was owed beyond pay in lieu of notice; further, under the old Act an employer had no obligation to hear the employee or assign reasons unless the contract so stipulated, and the respondent in any event engaged the claimant through her grievances and hearings. Reinstatement was refused given the lapse of time and the claimant's own statement that she could not work with senior management. The claim was dismissed as without merit, save that the claimant was awarded her exit package as contained in the termination letter dated 9th June 2008 upon compliance with its conditions. There was no order as to costs.

Key legal issues

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01

Lawfulness of termination under the repealed Employment Act

Holding

Termination was lawful; the old Act imposed no obligation to hear or assign reasons unless the contract stipulated so, and the respondent in any event engaged the claimant through her grievances and hearings

Reasoning

The dispute arose under the repealed Employment Act, under which no compensation for unfair termination existed beyond pay in lieu of notice. The court found the respondent gave the claimant opportunities to raise grievances, attended meetings, invited her to hearings on 29 May and 5 June 2008, considered her representations, and offered an exit package in the termination letter. The relationship of trust had irretrievably broken down, with the claimant herself stating she could not work with senior management.

p. 3
02

Reinstatement

Holding

Refused as inappropriate given lapse of time and the breakdown of the relationship

Reasoning

The court held that reinstatement was not appropriate considering the time elapsed since filing and that the claimant herself had said she could no longer work with the respondent's senior management, undermining any practical prospect of restored working relations.

p. 3
03

Claimed loss of income and allowances

Holding

Not awardable in law under the repealed Act; claim dismissed save for the exit package

Reasoning

Compensation under the old Act was confined to notice pay. The claimant's broader claim for loss of income, maternity, medical, vacation and car allowances and Zanzibar duties could therefore not stand. Only the exit package in the termination letter of 9 June 2008 was payable, upon compliance with its conditions.

p. 3

Legal principles established

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  • Under the repealed Employment Act, compensation for unlawful termination was limited to pay in lieu of notice; there was no compensation for unfair termination
  • Under the old Employment Act, unless stipulated in the contract, an employer had no obligation to hear the employee or assign reasons for termination
  • Employment is a contract for personal service dependent on mutual trust and confidence

Court orders

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  1. 1.Claim dismissed as without merit
  2. 2.Claimant to be paid her exit package as contained in her termination letter dated 9th June 2008 upon compliance with conditions set therein if not already
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Act (repealed)
  • Employment Actsection 43
  • Employment Actsection 45(2)(a) and (b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (dispute commenced under the repealed Employment Act)

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, "Janet Asamba Omodi v Fairmont Hotels & Resorts (E. A) Ltd [2019] KEELRC 151 (KLR)", Case Analysis (2019). Cause No 1164 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/151/eng@2019-11-22

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