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ELRCPartially AllowedCause No. 47 of 2018 (Amended Statement of Claim filed 6th February 2018)· [2020] KEELRC 85 (KLR)

Rumba Mnyika Nguta v Southern Hills Development Agency Limited t/a Radio Kaya [2020] KEELRC 85 (KLR)

Employment and Labour Relations Court
15 December 2020
2,302 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, a Gardener at the Respondent's Radio Kaya Station in Kwale County, sued for unfair summary dismissal on 30th March 2018, after he failed to return from his lunch break in time to relieve a Security Guard who needed time off to attend a relative's burial. He sought notice pay, house allowance, leave allowance, underpayments, public holiday pay, salary for the unexpired 21 months of a fixed-term contract, 12 months' compensation for unfair termination, a declaration, certificate of service, costs and interest. The Respondent maintained the dismissal was for absence from duty without lawful cause. The Court found a valid reason for termination, accepting that the Claimant's lateness and prior warnings constituted gross misconduct under Section 44(4) of the Employment Act. However, the Respondent wholly failed procedurally: no show-cause letter was issued and no disciplinary hearing was convened, breaching Section 41; the Court held that gross misconduct does not obviate the need for a hearing. Employment was dated from 1st January 2015, and underpayment contrary to the Wage Orders was conceded. Awards: compensation of 5½ months' salary (Kshs. 55,000), notice (Kshs. 10,000), underpayment (Kshs. 38,254) and 11 days' accrued annual leave pay (Kshs. 4,230), totalling Kshs. 107,484. Refused: house allowance (gross salary clause), public holiday pay (no evidence), salary for the unexpired contract, and the full leave claim. Termination was declared unfair, a Certificate of Service ordered, with no order on costs and interest.

Key legal issues

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01

Validity of reason for termination

Holding

Valid reason established - the Claimant's failure to relieve Security Guard Haji amounted to gross misconduct under Section 44(4)

Reasoning

The evidence of Florence and Haji satisfactorily established that the Claimant was instructed to take his break early and return to relieve Haji, who needed time off for a burial. The Claimant conceded he returned late and had prior warnings about lateness. His conduct fell within Section 44(4) grounds: absenting himself without lawful cause and disobeying a lawful command within the scope of his duty. Termination was therefore fair in substance.

p. 2
02

Fairness of procedure

Holding

Procedure was unfair; the Respondent breached Section 41 by failing to issue a show-cause letter or convene a disciplinary hearing

Reasoning

Although the Respondent had valid reason, it did not issue a letter to show cause and did not convene a disciplinary hearing. Florence's assertion that gross misconduct made a hearing unnecessary was rejected. Prior oral and formal warnings do not substitute for the hearing mandated by Section 41. This rendered the termination procedurally unfair, entitling the Claimant to compensation under Section 49.

p. 3
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Compensation for unfair termination

Holding

Compensation awarded at 5½ months' salary (Kshs. 55,000) under Section 49

Reasoning

The Court considered the Claimant's length of service (3 years and 2 months), his contribution to the termination through repeated lateness warnings, that he was not a model employee, and that he was paid nothing on termination. These Section 49 factors justified a moderate award of 5½ months rather than the 12 months sought.

p. 3
04

Underpayment of wages

Holding

Underpayment for the period 1st January 2015 to 30th March 2018 awarded at Kshs. 38,254

Reasoning

Florence conceded under cross-examination, upon being shown the Wage Orders exhibited, that the Respondent did not pay the Claimant according to the Wage [Amendment] Orders. The Court adopted 1st January 2015 as the date of employment and granted the tabulated underpayment claim for the period from that date.

p. 3

Legal principles established

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  • Gross misconduct by an employee does not obviate the employer's statutory duty to afford a disciplinary hearing before termination
  • Untaken leave is not forfeited but becomes an accrued benefit that is monetized and paid out
  • A gross salary clause is construed as an all-inclusive package excluding a separate claim for house allowance
  • A party relying on the contents of a document must produce it; the earliest available contract governs the date of employment

Court orders

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  1. 1.It is declared that termination was unfair
  2. 2.The Respondent shall pay the Claimant compensation at Kshs. 55,000
  3. 3.The Respondent shall pay the Claimant notice at Kshs. 10,000
  4. 4.The Respondent shall pay the Claimant underpayment of wages at Kshs. 38,254
  5. 5.The Respondent shall pay the Claimant annual leave pay at Kshs. 4,230 – total Kshs. 107,484
  6. 6.Certificate of Service to issue
  7. 7.No order on the Costs and Interest

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 44 [4]
  • Employment ActSection 41
  • Employment ActSection 49
  • Wage [Amendment] Ordersnull
  • Minimum Wage Lawnull
  • N.S.S.F (Provisional Member Statement of Account referenced)null
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 44, 45 and 49) - first-instance employment claim

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, "Rumba Mnyika Nguta v Southern Hills Development Agency Limited t/a Radio Kaya [2020] KEELRC 85 (KLR)", Case Analysis (2020). Cause No. 47 of 2018 (Amended Statement of Claim filed 6th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/85/eng@2020-12-15

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