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ELRCDismissedCause No 106 of 2017· [2019] KEELRC 1775 (KLR)

Stephen Okumu Ongoro v Casaurina Nomad Limited [2019] KEELRC 1775 (KLR)

Employment and Labour Relations Court
25 April 2019
1,236 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 confirmed an employer's dismissal was lawful because it followed fair procedure and had valid reasons, even overriding its own disciplinary committee's recommendation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Security Bouncer from 1st February 2010 at a monthly salary of Kshs. 17,584, was summarily dismissed on 9th January 2017 for failing to prevent a motor vehicle that had rammed into the Respondent's building from leaving the accident scene, failing to photograph the vehicle and its insurance sticker, and failing to seek reinforcement. He sought notice pay, seven years' leave pay, service pay, and twelve months' salary as compensation for unlawful termination. The Respondent maintained that the dismissal was lawful and fair, that the Claimant was given a show cause letter, appeared before the Grievance and Disciplinary Committee, and was paid all his dues. The court framed two issues: whether the termination was lawful and fair, and whether the remedies sought were payable. Applying the principle that it must not substitute the employer's decision for its own, the court found the Claimant acted irresponsibly in failing to secure his employer's interests despite available backup options, giving the Respondent a valid reason under Section 43 of the Employment Act. Procedural fairness under Section 41 was satisfied through the show cause letter, written response, and appearance before the GDC, whose recommendations did not bind the employer. Leave pay for antecedent years was statute-barred under Section 90, and NSSF membership defeated the service pay claim. The entire claim was dismissed, with each party bearing their own costs after the Respondent forewent costs.

Key legal issues

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01

Whether the summary dismissal was justified on substantive grounds under Section 43 of the Employment Act

Holding

Yes - the Claimant acted irresponsibly in failing to prevent the accident vehicle from leaving the scene and to secure his employer's interests despite available backup options, giving the Respondent a valid reason to dismiss him.

Reasoning

The court held it must not substitute the employer's decision but ask whether the employer acted reasonably. The Claimant received specific instructions after the accident of 24th December 2016 but did not use backup options (other bouncers, KK Security, Police), did not take photographs or secure the insurance sticker, and did not explain why he engaged the vehicle owner first. His conduct was found irresponsible, satisfying Section 43.

p. 2
02

Whether the disciplinary procedure complied with Section 41 of the Employment Act

Holding

Yes - the Claimant was issued a show cause letter, responded to it, and appeared before the Grievance and Disciplinary Committee accompanied by a colleague, satisfying procedural fairness.

Reasoning

The show cause letter dated 30th December 2016 invited the Claimant to the GDC; he responded on 3rd January 2017 and appeared before the Committee accompanied by Anthony Kahindi. The court held the employer was not bound by the GDC's recommendations so long as its decision was lawful.

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03

Whether the Claimant was entitled to leave pay, service pay, notice pay and compensation

Holding

No - compensation and notice pay failed with the dismissal; leave pay for antecedent years was statute-barred; service pay was barred by NSSF membership.

Reasoning

Having found the dismissal lawful and fair, the compensation and notice claims failed. The Claimant admitted in cross-examination he was paid leave pay for 2015/2016, rendering older claims statute-barred under Section 90. His payslips showed he was a contributing NSSF member, disqualifying service pay.

p. 3

Legal principles established

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  • In reviewing a termination, the court does not substitute the employer's decision with its own; it asks only whether the employer acted reasonably in the circumstances.
  • An employer is not bound by the recommendations of its internal Grievance and Disciplinary Committee, whose role is only to afford the employee an opportunity to be heard.
  • An employee who is a contributing member of NSSF is not entitled to service pay.

Court orders

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  1. 1.The Claimant's entire claim fails and is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 90

Cases cited (1)

  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43 and 90 invoked in the determination)

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, "Stephen Okumu Ongoro v Casaurina Nomad Limited [2019] KEELRC 1775 (KLR)", Case Analysis (2019). Cause No 106 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1775/eng@2019-04-25

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