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ELRCPartially AllowedCause No. 493 of 2017· [2019] KEELRC 1765 (KLR)

Florence Wambui Gitau v Eclipse International [2019] KEELRC 1765 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
14 March 2019
MMM. Mbaru
1,901 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent as a waitress (and later also as cashier) at its night club, sued for notice pay, underpayments, normal overtime, public holiday pay, leave, maternity leave pay, November 2017 salary, half salary during suspension, and compensation for unfair termination. She alleged verbal employment at Ksh.7,500 rising to Ksh.8,000, no written contract or payment statements, unpaid overtime for 6pm-6am shifts, unpaid public holidays, no paid annual leave, unpaid maternity leave, and verbal dismissal by the accountant Mr Isaac Limo on 1st December 2017 after a suspension. The defence denied the claims, asserting the claimant absconded duty after a two-week suspension to show cause over cash losses, that statutory dues were paid, and that a 30-day notice was issued. The court found the summary dismissal justified: the claimant never properly accounted for her absence from work on 9th November 2017 and her demand for salary rather than explanation supported the defence of absconding; absence from work justifies summary dismissal under section 44(4)(a) of the Employment Act. Notice pay and compensation were refused, as was the overtime claim, the respondent's defence on business hours being unchallenged. However, public holiday pay of Ksh.24,638.70 was awarded because the payment sheets did not segregate such pay, annual leave of Ksh.35,093.00 was awarded for 85 leave days over 4 years and 7 months for want of records of payment, and underpayments of Ksh.24,110.45 were awarded from May 2016 against the Wage Orders. November 2017 salary of Ksh.4,128.00 and half salary during suspension of Ksh.5,280.54 were also awarded. Maternity leave pay was refused for lack of supporting records. Each party was ordered to bear its own costs.

Key legal issues

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01

Fairness of the termination

Holding

The termination was justified and notice pay and compensation were refused

Reasoning

The claimant was issued a show cause notice requiring her to explain her absence from work on 9th November 2017. Her reply merely described the allegations as fabrication without giving an account. Her evidence that she reported on 1st December 2017 only to demand salary was found credible, supporting the defence that she absconded. Absence from work justifies summary dismissal under section 44(4)(a) of the Employment Act, 2007.

p. 3
02

Underpayments

Holding

Awarded at Ksh.24,110.45, being the shortfall against the Wage Orders from May 2016 to November 2017

Reasoning

For 2013-2015 the gross wage paid (e.g. Ksh.9,924.00) exceeded the minimum wage due under the Wage Orders. From May 2016 the claimant was paid Ksh.9,924.00 against Ksh.10,496.90 due, and from May to November 2017 against Ksh.12,386.35 due, yielding cumulative underpayments of Ksh.24,110.45.

p. 3
03

Public holidays, annual leave and maternity leave

Holding

Public holiday pay of Ksh.24,638.70 and annual leave of Ksh.35,093.00 awarded; maternity leave pay refused for want of supporting records

Reasoning

The respondent admitted work on public holidays but produced payment sheets without segregation of holiday pay, so the claim was awarded as claimed. Leave records showed 42 days leave and 90 days maternity leave, but no records confirmed payment during leave, so salary for 85 leave days was due. For maternity leave, the claimant produced no medical certificate or birth certificate to support the award.

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04

Overtime

Holding

Claim refused

Reasoning

The defence that business hours ran from 8pm to 3am was not materially challenged. The court observed that requiring employees to remain at the premises for security reasons until it was safe to go home should have been addressed differently, but accepted this as an appropriate defence to the overtime claim.

p. 3

Legal principles established

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  • Absence from work without justification is a ground for summary dismissal under section 44(4)(a) of the Employment Act, 2007
  • Where an employer fails to keep records showing payment for public holidays, annual leave and maternity leave, the employee's claim for such dues succeeds
  • Underpayments are assessed by reference to the applicable Wage Orders and the actual gross wages paid as evidenced by payment sheets

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for terminal dues as itemised (underpayments Ksh.24,110.45; public holidays Ksh.24,638.70; annual leave Ksh.35,093.00; 10 days for November 2017 Ksh.4,128.00; half salary unpaid during suspension Ksh.5,280.54)
  2. 2.Dues to be subject to section 49(2) of the Employment Act, 2007
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 28
  • Employment Act, 2007section 29
  • Employment Act, 2007section 34
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 49(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment Act, 2007 (employment cause filed under the court's original jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Florence Wambui Gitau v Eclipse International [2019] KEELRC 1765 (KLR)", Case Analysis (2019). Cause No. 493 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1765/eng@2019-03-14

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