Daniel Kioko Mwangangi v Gray’s Oak Hotel [2020] KEELRC 1215 (KLR)
The bottom line
#A Kenyan court ruled a waiter was unfairly dismissed because his employer never gave him a hearing, awarding him pay, damages and costs.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
The Claimant proved an employment relationship through payslips evidencing periodic salary payment and suspension and dismissal letters issued by the Respondent
In an undefended claim the claimant bears the burden of proving all facts including the employment relationship. The Claimant produced bank statements/payslips showing periodic salary transfers from the Respondent, plus a suspension letter and dismissal letter issued by the Respondent. With no defence filed, this evidence was uncontroverted and satisfied the burden on a balance of probabilities.
Wrongful, unfair and unlawful termination
The termination was unfair and unlawful as the Claimant was not accorded a hearing and no reasons for termination were explained
The Claimant testified that he was never accorded an opportunity to be heard before a disciplinary committee and that reasons for termination were never explained to him. There being no defence, the evidence was uncontroverted. Applying the principle that both substantive justification and procedural fairness are required, the court found the summary dismissal procedurally and substantively unfair.
Entitlement to reliefs
Notice pay, six months' compensation, service pay, house allowance, pay in lieu of public holidays and a certificate of service were awarded; the underpayment claim failed
Applying sections 31, 35, 36, 49 and 51 of the Employment Act, the court awarded notice pay based on the last salary of Kshs.11,900 shown in bank statements, six months' compensation for unfair termination, service pay for non-remittance of NSSF, house allowance where salary was not consolidated, and public holiday pay, the employer's records duty leaving those claims uncontroverted. The underpayment claim failed as the last salary exceeded the statutory minimum wage.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- In an undefended claim, the claimant must first establish the existence of an employment relationship before establishing unfair termination
- Fair procedures under section 41 of the Employment Act are mandatory; non-compliance renders termination procedurally unfair
Court orders
#- 1.Declaration implied by finding that the Claimant was unfairly and unlawfully dismissed
- 2.Respondent to pay one month's salary in lieu of notice of Kshs.11,900
- 3.Respondent to pay six months' salary as compensation for unfair termination, Kshs.71,400
- 4.Respondent to pay service pay of Kshs.13,730.77
- 5.Respondent to pay house allowance of Kshs.55,335
- 6.Respondent to pay pay in lieu of public holidays of Kshs.11,376.63
- 7.Respondent to issue the Claimant a Certificate of Service
- 8.Claimant awarded costs of the suit and interest at Court rates from the date of Judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Emmanuel Mambo Oduory v One Acre Fund [2020] KEELRC 541 (KLR)[2020] KEELRC 541 (KLR)7 Aug 2020
Cite this brief
#Cite this brief
Caselaw, "Daniel Kioko Mwangangi v Gray’s Oak Hotel [2020] KEELRC 1215 (KLR)", Case Analysis (2020). Cause No 738 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1215/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.