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ELRCPartially AllowedCause No 905 of 2014· [2019] KEELRC 518 (KLR)

Denis Omondi v Eurocraft Agencies [2019] KEELRC 518 (KLR)

Employment and Labour Relations Court
18 October 2019
ANAbuodha Jorum Nelson
1,038 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that even insubordination can't justify summary dismissal without first giving the employee a fair disciplinary hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a customer service agent from March 2010, challenged his summary dismissal. He pleaded that on 31st December 2013 the station manager promoted him to team leader with immediate effect, but the General Manager disowned the appointment for want of proper recruitment procedure; the claimant was then served with a dismissal letter on 2nd January without notice or payment in lieu. The respondent defended the dismissal, alleging the claimant, together with Nancy Njogu and Francis Chacha, openly defied lawful orders on 1st January 2014 to take up duties, amounting to insubordination justifying stern disciplinary action. It denied owing notice pay, holiday or leave dues. In evidence, the claimant admitted he had not complained in writing about the new assignments and had no documents proving holiday work, there being a duty roster signed by all staff. The statement of Eric Tanui, admitted by consent, confirmed the claimant's acting team leader role and his refusal of assigned duties. The court held that refusal to obey a lawful order is a valid ground for summary dismissal, but the Employment Act prescribes a minimum procedure: a valid reason plus an opportunity to show cause. Since the claimant appeared to have a reason for his refusal, the respondent ought to have accorded him a disciplinary hearing; confiscating his pass and sending him away pending disciplinary action contravened the Act, rendering the termination unfair. The court awarded one month's salary in lieu of notice (Kshs 12,600) and five months' salary for unfair dismissal (Kshs 63,000), with interest from the date of judgment subject to taxes and statutory deductions, plus costs of the suit. Claims for holiday and leave dues, unsupported by evidence, were not awarded.

Key legal issues

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01

Fairness of summary dismissal for insubordination

Holding

Although refusal to obey a lawful order is a valid ground for summary dismissal, the dismissal was unfair because the employer denied the claimant a disciplinary hearing before sending him away

Reasoning

The court accepted that disobedience of a lawful order is a recognised ground for summary dismissal, and that the claimant may have disobeyed an order to take up the team leader role. However, the claimant appeared to have a reason for his refusal (lack of training), so procedural fairness required the respondent to hear him before dismissal. Confiscating his pass and sending him away pending disciplinary action contravened the Employment Act's minimum procedure, rendering the termination unfair.

p. 2

Legal principles established

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  • Before terminating an employee's services an employer must have a valid reason and accord the employee an opportunity to show cause why they should be dismissed

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 12,600
  2. 2.Five months' salary for unfair dismissal of Kshs 63,000
  3. 3.Interest on items (a) and (b) at court rates from date of judgment until payment in full, subject to taxes and statutory deductions
  4. 4.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Actnot specified (minimum termination procedure)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (not expressly cited; court exercised first-instance jurisdiction over a summary dismissal claim)

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, "Denis Omondi v Eurocraft Agencies [2019] KEELRC 518 (KLR)", Case Analysis (2019). Cause No 905 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/518/eng@2019-10-18

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