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ELRCPartially AllowedEmployment Cause (number not stated in judgment; Memorandum of Claim dated 10th October 2016, filed 27th October 2016)· [2020] KEELRC 671 (KLR)

Zakaria Auma Samuel Otieno Odero v Kaluworks Limited [2020] KEELRC 671 (KLR)

Employment and Labour Relations Court
14 May 2020
1,972 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an employee's dismissal for poor performance but ordered his employer to pay Kshs. 148,458 in unpaid leave dues.

What this practically means

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Executive summary

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This Employment and Labour Relations Court judgment at Machakos, delivered by Linnet Ndolo, J on 14th May 2020, determined a claim by Zakaria Auma Samuel Otieno Odero against his former employer, Kaluworks Limited, arising from his summary dismissal on 30th October 2015 on grounds of poor performance and gross negligence. The Claimant, employed from September 2003 as a Senior Production Engineer and later Assistant Production Manager, sought notice pay, October salary, leave pay, leave travelling allowance, severance pay, twelve months' compensation and a certificate of service. The court framed two issues: whether the dismissal was lawful and fair, and whether the remedies were due. On the first, the court found the Respondent had documented the Claimant's poor performance and negligence through warning letters dating back to 2005 and had supported him with training, satisfying the substantive requirement; procedurally, the Claimant was notified of, participated in, and signed the minutes of the disciplinary meeting, satisfying Section 41 of the Employment Act. The dismissal was therefore upheld and the claims for compensation and notice pay were disallowed. Severance pay was refused as it applies only to redundancy, and the October salary claim was abandoned at trial. However, the court allowed the unchallenged claims for 58 days' leave pay (Kshs. 135,258) and leave travelling allowance (Kshs. 13,200), totalling Kshs. 148,458, with interest at court rates from the date of judgment, and ordered the Respondent to issue a certificate of service. Costs were awarded to the Claimant. The judgment was delivered electronically under COVID-19 directions, with the parties waiving compliance with Order 21 Rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Whether the Claimant's dismissal for poor performance was substantively justified

Holding

Yes - the Respondent had a valid reason for dismissal based on documented poor performance and negligence over many years

Reasoning

The court noted a chronology of cautionary and warning letters dating back to 2005, appraisal reports noting the Claimant's skill gaps, and evidence of training and support offered to improve performance. The Claimant did not rebut this evidence and was silent on the circumstances of his termination. Poor performance is a lawful ground under the Employment Act.

p. 4
02

Whether the procedural fairness requirements of Section 41 of the Employment Act were satisfied

Holding

Yes - the Claimant was notified of the disciplinary meeting, participated fully, and signed the minutes without objection

Reasoning

The court found the Claimant was duly notified of the date, venue and agenda of the disciplinary meeting of 30th October 2015, did not object to any aspect of it, fully participated, and acknowledged the record by appending his signature. Applying the Ochanda decision from the Court of Appeal, the Section 41 requirements were fully met.

p. 4
03

Whether the Claimant was entitled to 58 days' leave pay and leave travelling allowance

Holding

Yes - the claim for 58 days was unchallenged as the Respondent produced no documents supporting its assertion of 55.5 days

Reasoning

The Respondent admitted the leave claim but reduced the days to 55.5. The court held that as employer, the Respondent was responsible for employment records and, having produced no documents to support its figure, the Claimant's claim for 58 days stood unchallenged. The same reasoning applied to the leave travelling allowance.

p. 4

Legal principles established

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  • The proper procedure once poor performance of an employee is noted is to point out the shortcomings and give the employee an opportunity to improve over a reasonable length of time
  • An employee who had prior notice of a disciplinary hearing and participated in it cannot complain of being denied an opportunity to be heard
  • The employer, as custodian of employment records, bears the burden of proving its assertion on leave entitlement where it produces no supporting documents

Court orders

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  1. 1.Judgment entered in favour of the Claimant for leave pay for 58 days of Kshs. 135,258
  2. 2.Leave travelling allowance of Kshs. 13,200 awarded
  3. 3.Total award of Kshs. 148,458 with interest at court rates from the date of judgment until payment in full
  4. 4.Claimant entitled to a certificate of service
  5. 5.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 41
  • Employment Act, 2007Section 44(4)(c)
  • Employment ActSection 19
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40 (as cited in the delivery order; appears to intend access to justice)

Cases cited (2)

  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) v Stanley Kinyanjui and Magnate Ventures
    Cause No 273 of 2010
  • Jacob Oriando Ochanda v Kenya Hospital Association T/A Nairobi Hospital
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute; sections 41, 44(4)(c) and 19 invoked)

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, "Zakaria Auma Samuel Otieno Odero v Kaluworks Limited [2020] KEELRC 671 (KLR)", Case Analysis (2020). Employment Cause (number not stated in judgment; Memorandum of Claim dated 10th October 2016, filed 27th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/671/eng@2020-05-14

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