Vitalis Ben Otieno v Catholic Diocese of Nakuru [2019] KEELRC 2576 (KLR)
The bottom line
#Kenya's Employment Court dismissed a dismissed manager's claims because he waited too long to sue and his own negligence justified the dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the nature of employment was defined
The claimant was employed under two separate and distinct fixed term contracts - as a Binder from 1st January 1998 and as Press Manager from 1st January 2011 - the latter signed by the claimant on 10th March 2011
The court found the contract of 1st January 2011 for press manager to be valid. The claimant admitted the signatures appeared similar to his and did not denounce the contract. The two contracts were not renewals but separate and distinct engagements, each defining the claimant's position, work hours and remuneration.
Whether the summary dismissal of the claimant was unfair or justified
The summary dismissal was justified as the claimant wilfully neglected and carelessly performed his duties as manager by leaving the printing press unlocked overnight
The claimant, as press manager, was responsible for his work area and left the office open for the whole night, exposing the employer to possible loss. This was not the first occurrence, and he left keys with a stranger who was not staff. When put to account there was no satisfactory response. Section 44(4)(c) permits summary dismissal for wilful neglect and careless performance of duties, and prior instances of misconduct showed the gross misconduct had built over time.
Whether the remedies sought are due
None of the remedies sought were due; the claims for underpayment and overtime were time-barred and the dismissal being justified, notice pay and compensation could not be awarded
The underpayment and overtime claims related partly to a contract that ended in 2011 and should have been filed within three years under section 90. In any event, the Artisan Grade I wage scale had no bearing on the claimant's positions as binder and press manager. Since the dismissal was justified, neither compensation nor notice pay was payable, and overtime was not a contractual entitlement.
Legal principles established
#- Fixed term contracts are a lawful and legitimate mode of employment under section 10(3)(c) of the Employment Act
- A new and distinct fixed term contract commences a new work relationship, and claims relating to the prior contract must be filed within the three-year limitation period in section 90 of the Employment Act
- An employee who wilfully neglects or carelessly performs duties may be summarily dismissed under section 44(4)(c) of the Employment Act
- Overtime worked without the employer's approval and sanction is not a contractual condition entitling the employee to payment
Court orders
#- 1.The claims made are found without merit and are hereby dismissed
- 2.The claimant shall meet the costs due to the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vitalis Ben Otieno v Catholic Diocese of Nakuru [2019] KEELRC 2576 (KLR)", Case Analysis (2019). Cause No. 266 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2576/eng@2019-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.