Dorice Makobe v Hotel Baracuda Inn Ltd [2020] KEELRC 1659 (KLR)
The bottom line
#A Kenyan court ruled a hotel constructively dismissed a room steward by punishing her unfairly during a theft investigation, awarding her over Kshs. 97,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unlawfully terminated
The Respondent's actions of selectively suspending, surcharging and withholding salary made the Claimant's employment untenable, amounting to constructive dismissal
The court found that targeting only the Claimant for suspension among colleagues implicated in the same theft incident was unjustified; suspending and surcharging her for the same offence subjected her to double jeopardy; and withholding her salary during suspension undermined the professed investigative purpose. Cumulatively these actions rendered her employment untenable and amounted to constructive dismissal as defined by the Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga.
Entitlement to house allowance
House allowance allowed at 15% of basic salary for three months (July to September 2017), adopting Kshs. 12,075 as monthly salary
Section 31(1) and (2) of the Employment Act obliges an employer to provide reasonable housing or pay a sufficient sum as rent unless the contract consolidates a housing element in the wage. The Respondent produced no document proving payment of house allowance, so the claim was allowed at 15% of basic salary. The court limited the period to three months because the Claimant's own testimony showed she worked on seasonal contracts during the high season from July to March.
Whether the Claimant was a casual employee and entitled to leave pay
The averment that the Claimant was a casual employee was unsupported; leave pay allowed for one year
The Respondent's Manager asserted in her witness statement that the Claimant was not entitled to leave because she was a casual employee. However, no evidence supported that averment. Moreover, the Respondent conceded one month's salary in lieu of notice, which would not be payable to a casual employee, undermining its own characterisation. The court therefore allowed leave pay for one year, computed as 12,075/30 x 21.
Legal principles established
#- Suspension is a neutral action to allow for investigations and should not attract adverse action such as withholding of salary absent statutory provision
- Suspension and surcharging an employee for the same offence constitutes double jeopardy and, cumulatively with other unjustified actions, can amount to constructive dismissal
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 97,702, being 6 months' salary in compensation (Kshs. 72,450), 1 month's salary in lieu of notice (Kshs. 12,075), house allowance for 3 months @ Kshs. 1,575 (Kshs. 4,725) and leave allowance for 1 year (Kshs. 8,452)
- 2.The awarded amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimant to have the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Labour Relations Act (not expressly cited in the judgment text)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorice Makobe v Hotel Baracuda Inn Ltd [2020] KEELRC 1659 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1659/eng@2020-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.