Evans Gato Orina v Aggreko International Project Limited [2019] KEELRC 1000 (KLR)

The dismissal letter cited use of threats and abusive language towards a customer, contrary to Clause 13(g) of the employment contract. RW1 testified about the gate incident; the Claimant's email and his statements at the disciplinary hearing and appeal admitted the incident and the need to temper his behaviour. The court held it was not natural for a junior officer to summon a supervisor where there was no problem, and found on a balance of probability that a valid reason existed.

Section 41 requires the employer to explain the reasons for contemplated termination and to hear the employee's representations, with an option of a companion. The letter of 23rd June 2015 set out the charges and informed the Claimant of his right to be accompanied; he chose to attend alone. Proceedings produced in evidence confirmed he was heard by the disciplinary committee and on appeal, dismissed on 8th July 2015. The court found the respondent proved fair procedure on a balance of probability.

Clause 10 of the contract entitled the Claimant to 25 working days' annual leave. He went on leave shortly after the 10th June 2015 incident but was dismissed on 30th June 2015 while 10 days remained outstanding. The respondent asserted the leave was paid via the July 2015 payslip but produced no leave records; no evidence proved payment of the outstanding leave. The court computed the award as Kshs.87,886.67 x 10/26.

Clause 7 of the contract provided for a basic consolidated salary. The court held that the description 'consolidated' meant the constant gross salary inclusive of allowances, placing the burden of proving otherwise on the employee. It expressly departed from the Kuevaco v NPC-CITAM decision relied on by the Claimant and instead followed Charity Wambui Muriuki v Total Security Surveillance Limited.