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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 16th April 2018, filed 18th April 2018)· [2019] KEELRC 628 (KLR)

Alfred Msindah Ngowa v Malindi Golf and Country Club [2019] KEELRC 628 (KLR)

Employment and Labour Relations Court
14 October 2019
LNLinnet Ndolo
1,730 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 a golf club unfairly sacked a security guard without a hearing, awarding him Kshs. 58,656.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from 1st May 2017 on a basic monthly salary of Kshs. 11,280, sued for unlawful termination, religious discrimination and unpaid dues after his dismissal by letter dated 30th September 2017 for absenteeism. He claimed he had arranged with the Club Captain to move his rest day to Sunday for church attendance, and that when he took Sunday 24th September 2017 off, the Manager sent him away for two weeks, after which he was told there was no work. The Respondent, which filed a defence but called no witness, maintained that he absented himself without permission and left employment voluntarily, though its pleadings were inconsistent on the duration of the alleged absence. The Court framed three issues: wrongful dismissal, discrimination and remedies. On the first, it found the accusations equivocal and no charge presented to the Claimant before dismissal, breaching the procedural fairness requirements of Section 41 of the Employment Act, with absenteeism unproved to the Section 43 standard; dismissal was held substantively wrongful and procedurally unfair, earning three months' salary in compensation plus one month's notice pay. On discrimination, the Court distinguished Prisca Kemboi, finding the employer had made reasonable accommodation for the Claimant's religious needs, and dismissed that claim. House allowance at 15% of basic salary was awarded as the claim was unassailed, but the September 2017 salary claim was dismissed as paid. Judgment of Kshs. 58,656 with interest and costs was entered for the Claimant.

Key legal issues

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01

Wrongful and unfair dismissal

Holding

Dismissal was substantively wrongful and procedurally unfair; Claimant awarded 3 months' salary in compensation

Reasoning

The Respondent's pleadings and dismissal letter were inconsistent on the dates and duration of the alleged absenteeism, making the charge equivocal. No charge was presented to the Claimant for response prior to dismissal, breaching Section 41 procedural fairness, and the absenteeism was not proved to the Section 43 standard. Compensation of three months' salary was assessed considering the short tenure and the Respondent's conduct.

p. 3
02

Discrimination on religious grounds

Holding

Claim dismissed; no discrimination established

Reasoning

Although Prisca Kemboi remains good law, unlike that case the employer here took positive action on the Claimant's request to change his rest day to Sunday for church attendance, granting two Sundays off monthly pending the change. Reasonable accommodation was made, so no basis for the discrimination claim exists.

p. 3
03

House allowance

Holding

Claim allowed at 15% of basic salary; monthly salary fixed at Kshs. 12,972 for computation

Reasoning

The letter of appointment made no provision for house allowance and the Respondent did not produce payslips, so the claim was unassailed. Under Section 31 of the Employment Act, absent a consolidated wage provision, house allowance at 15% of basic salary is payable, and the resultant figure was adopted as the monthly salary.

p. 4

Legal principles established

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  • Before summary dismissal on grounds of misconduct, an employer must observe procedural fairness under Section 41 of the Employment Act by notifying the employee of the charges and giving an opportunity to respond
  • Absence from work must be proved to the standard required by Section 43 of the Employment Act before summary dismissal is justified
  • An employer who makes reasonable accommodation for an employee's religious observance does not discriminate on religious grounds

Court orders

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  1. 1.3 months' salary in compensation of Kshs. 38,916
  2. 2.1 month's salary in lieu of notice of Kshs. 12,972
  3. 3.House allowance for 4 months (1,692x4) of Kshs. 6,768
  4. 4.Total judgment of Kshs. 58,656 with interest at court rates from date of judgment until payment in full
  5. 5.Claimant to have costs of the case

Authorities

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Legislation

  • Employment ActSection 44(g)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 31(1) and (2)

Cases cited (2)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Prisca Kemboi & 2 others v Kenya Post Office Savings Bank
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unspecified article; original first-instance 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, "Alfred Msindah Ngowa v Malindi Golf and Country Club [2019] KEELRC 628 (KLR)", Case Analysis (2019). Not stated in judgment (Memorandum of Claim dated 16th April 2018, filed 18th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/628/eng@2019-10-14

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