Praxides Akoth Oduor v Liberty Eagle Limited & another [2019] KEELRC 636 (KLR)
The bottom line
#A Kenyan court ruled Subway Kenya unfairly dismissed a worker because the company couldn't prove its theft allegations, awarding her Kshs.253,500.
What this practically means
#Executive summary
#Key legal issues
#Liability of the 2nd respondent (HR consultant)
The 2nd respondent was not privy to the contract of service and not liable for the prayers, though a necessary party
The contract of service was between the claimant and the 1st respondent. The 2nd respondent was an agent engaged as a human resource consultant. While involved in recruitment and HR management, it was not the employer, so it bore no liability for the terminal dues and compensation claimed, with costs between claimant and 2nd respondent borne by each party.
Procedural fairness under section 41
Substantial compliance with notice and hearing requirements despite no show-cause notice
The claimant was summoned by email specifying the subject of the hearing, attended and answered questions. The Court considered the prior correspondence and held that the employer substantially complied with section 41's requirements for notice and hearing.
Valid reasons under section 43
Employer failed to establish valid reasons; dismissal unfair
The respondent did not produce accounts of the shortages and variances, CCTV clips allegedly showing the claimant taking cash, or the disciplinary hearing minutes. The allegation of theft was not raised at the hearing and there was no conviction. The dismissal was therefore unfair for want of genuine reasons.
Remedies
6 months' salary compensation at 50% contribution, plus notice pay, leave pay and withheld pay
Considering the claimant's period of service, her apology, and her admitted failure to escalate variances beyond her immediate supervisor, contribution was fixed at 50%. The court also awarded leave pay under section 28, one month's notice pay, and Kshs.41,000 withheld salary for April and May 2015.
Legal principles established
#- An employer must establish valid and genuine reasons justifying summary dismissal under sections 43 and 45 of the Employment Act, 2007; failure of proof renders the termination unfair.
- Substantial compliance with the notice and hearing requirements of section 41 of the Employment Act may be satisfied by summons to a disciplinary hearing where the employee knows the agenda.
- A human resource consultant who is not party to the contract of service is not liable for terminal dues but may be a necessary party for effectual determination.
Court orders
#- 1.Declaration that the termination of the contract of service was unfair for want of a genuine reason for the summary dismissal
- 2.1st respondent to pay the claimant Kshs.253,500.00 (less due tax) by 01.12.2019 failing interest at Court rates from date of judgment till full payment
- 3.1st respondent to pay the claimant's costs of the suit
- 4.As between the claimant and the 2nd respondent, each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Praxides Akoth Oduor v Liberty Eagle Limited & another [2019] KEELRC 636 (KLR)", Case Analysis (2019). Employment and Labour Relations Court Claim (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/636/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.