Dorcas Oside Samwel v Rosoga Investmenets Limited [2020] KEELRC 1066 (KLR)
The bottom line
#A Kenyan court ruled a cleaner's dismissal unfair because her employer could not prove theft or disrespect claims, awarding her notice pay, compensation, and holiday pay.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for termination (section 43)
The reasons given - poor performance, pilferage and disrespect - were not proved by evidence and were invalid
The letter of dismissal cited unsatisfactory performance coupled with pilferage of condiments and disrespect towards the supervisor. The court found no record that performance failures were brought to the claimant's attention, and the inference of theft from improved stock consumption after suspension was described as pedestrian, subjective and unscientific. The employer had mechanisms of audit and could have pursued criminal action but did not. Allegations of theft and disrespect were therefore far-fetched and unsupported.
Fair procedure under section 41
Procedure was defective because the supervisor who made the complaint was not called for cross-examination and the record of her evidence at the disciplinary hearing was not taken
Although a disciplinary meeting was held, the supervisor alleged to have been disrespected gave verbal evidence not recorded, and the claimant could not cross-examine her. Section 41 mandates that the employee be able to call a witness of her choice and confront witnesses. Without the supervisor's testimony being tested, the allegation of insubordination remained a blur and the process did not conform to the statute.
Remedies - notice pay, compensation and public holiday pay
Notice pay, one month's compensation and particularised public holiday pay were awarded; other heads failed
The dismissal letter offered to pay for days worked less what was owed, so notice pay was due. Under sections 45 and 49, and noting the claimant went through a disciplinary process, one month's gross pay was appropriate compensation. Public holiday claims were particularised at Ksh.10,648 and unchallenged, so awarded. House allowance, underpayment and overtime claims failed for want of proof or exaggeration.
Legal principles established
#- The employer must establish valid and genuine reasons for termination at the time, and mere perception of theft without proof cannot justify dismissal
- Where an employee is alleged to be insubordinate, the person alleging it should give evidence for interrogation by the employee
- During a disciplinary hearing the employee is entitled to call a witness of her choice and to cross-examine witnesses, a mandatory right to be secured by the employer
Court orders
#- 1.Declaration that the claimant's employment was terminated unfairly
- 2.Compensation of Ksh.12,071.44 (one month gross pay)
- 3.Notice pay of Ksh.12,071.44
- 4.Public holidays pay of Ksh.10,684
- 5.Costs to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44 and 45 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorcas Oside Samwel v Rosoga Investmenets Limited [2020] KEELRC 1066 (KLR)", Case Analysis (2020). Cause No. 140 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1066/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.