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ELRCPartially AllowedCase No 265 of 2016· [2019] KEELRC 1368 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions, Hospital & Allied Workers v B.O.M Deb Gichiche Primary School [2019] KEELRC 1368 (KLR)

Employment and Labour Relations Court
13 June 2019
NMNzioki wa Makau
761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan watchman sacked without a hearing after asking for a pay rise won maximum compensation because his employer skipped mandatory Employment Act steps.

What this practically means

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Executive summary

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The Claimant sued the Respondent on behalf of the Grievant, John Njiru Musa, a watchman employed in July 2006 at a monthly salary of Kshs. 4,000. Following a theft at the school, the Grievant was arrested, detained for three days and released without charge, and was thereafter dismissed orally while demanding salary arrears and an increment. The Respondent filed no defence; counsel for the Attorney General appeared but, lacking instructions and documents, was excused. The Grievant testified in support of the claim, which sought notice pay, salary for October and November 2015, nine years' leave pay, compensation for the days in custody, twelve months' compensation for unlawful dismissal, and underpayment from 2010 to 2015. The court found that the Claimant proved there was no reason for the termination; the dismissal was oral and motivated by the Grievant's pursuit of a payrise. Applying Section 41 of the Employment Act as explained in Mary Chemweno Kiptui v Kenya Pipeline Company Limited, the court held that the failure to accord the Grievant a hearing or issue a termination letter rendered the dismissal both procedurally and substantively unfair. Remedies were, however, confined to statutory limits: the court awarded notice pay, the two months' salary, underpayment only for 2013-2015 (Kshs. 73,392), and the maximum twelve months' compensation because the dismissal was callous and malicious, plus costs and a certificate of service. Claims for leave pay and compensation for the days in custody were not granted.

Key legal issues

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01

Procedural and substantive fairness of the dismissal

Holding

The termination was both procedurally and substantively unfair as there was no hearing, no notice of charges and no letter of termination

Reasoning

The court found no reason for termination was proved and the dismissal was oral, apparently motivated by the Grievant's push for a payrise. Even if theft was suspected, the statutory safeguards under Section 41 of the Employment Act were mandatory. No hearing was held and no termination letter was issued, making the dismissal unfair on both limbs.

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02

Quantum of remedies

Holding

Remedies are confined to statutory limits; maximum 12 months' compensation awarded because dismissal was callous and malicious

Reasoning

The court held that relief beyond statutory limits could not be granted. It awarded notice pay, accrued salary, underpayment for 2013-2015 and the maximum 12 months' compensation, reasoning that the dismissal was callous and effected with malice, and the Grievant was incarcerated without basis while agitating for better pay.

p. 1

Legal principles established

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  • Section 41 of the Employment Act is mandatory; failure to accord an employee a hearing renders termination unfair

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 4,000
  2. 2.Salary for October and November 2015 of Kshs. 8,000
  3. 3.Underpayment between 2013 and 2015 of Kshs. 73,392
  4. 4.12 months' salary compensation of Kshs. 48,000
  5. 5.Costs of the suit
  6. 6.Certificate of service

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (1)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited in judgment)

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, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospital & Allied Workers v B.O.M Deb Gichiche Primary School [2019] KEELRC 1368 (KLR)", Case Analysis (2019). Case No 265 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1368/eng@2019-06-13

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