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ELRCPartially AllowedNot stated in the excerpt· [2020] KEELRC 1945 (KLR)

Ngambi v Diplomat Hotel Limited (Cause 452 of 2015) [2020] KEELRC 1945 (KLR)

Employment and Labour Relations Court
24 January 2020
OMOnesmus Makau
1,620 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a hotel manager damages because his employer fired him by text message without giving the required one month's written notice.

What this practically means

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Executive summary

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The claimant, employed by the respondent hotel as Hotel Manager from 1997 to 2013 under a series of seasonal contracts, sued alleging that his employment was unfairly terminated by SMS on 1.8.2013. He sought a declaration of unfair termination, Kshs. 778,920 in dues, a Certificate of Service and costs. The respondent denied unfair termination, contending the last fixed-term contract expired by effluxion of time on 31.7.2013 after an extension the claimant himself requested, and that the claimant took 52 leave days, owed debts for beer, a salary advance and a medical bill, and that NSSF contributions were remitted under a wrong number supplied by him. The court framed two issues: whether the last contract was unfairly terminated by SMS, and entitlement to reliefs. It held that under Regulation 18 of the Registration of Wages (Hotel and Catering Trades) Order, the claimant's seasonal service from 1.3.2011 converted to regular terms after six months, rendering the purported 2013 renewals immaterial. The service therefore ran continuously to 31.7.2013 and was admittedly terminated by SMS without the one month's written notice required by Regulation 20(1)(c), breaching the contract. However, because the termination was not for a cause, sections 41, 43 and 45 of the Employment Act did not apply, and the court declined to declare the termination unfair, holding it wrongful instead. The court awarded one month's salary in lieu of notice (Ksh. 30,000), leave for the last 12 months only (Ksh. 27,692.30), and July 2013 salary (Ksh. 30,000), totalling Kshs. 87,692.30, subject to statutory deductions, with costs and interest from filing suit. Claims for 17 years' accrued leave and the alleged service of a Certificate of Service were not granted, and the respondent's unsubstantiated debt counterclaims were dismissed.

Key legal issues

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01

Whether termination by SMS of a contract that expired by effluxion of time amounted to unfair termination

Holding

Termination was wrongful (breach of contract) for failure to give one month's notice, but not unfair within sections 41, 43 and 45 of the Employment Act since it was not for a cause

Reasoning

The contract lapsed by mutual agreement on 31.7.2013, but the hotel-sector wages order converted seasonal service into regular employment after six months, making the employment terminable by notice. RW2 admittedly terminated by SMS without prior notice, breaching Regulation 20. Because there was no cause, the unfair-termination provisions did not apply, and only breach of notice was established.

p. 4
02

Effect of Regulation 18 of the Registration of Wages (Hotel and Catering Trades) Order on seasonal contracts

Holding

After six months of continuous seasonal service the contract converts to regular terms and renewals on temporary terms are immaterial

Reasoning

Regulation 18 prohibits employment on temporary or seasonal terms beyond six months and deems such employees converted to regular terms. Applying this, the claimant's contract from 1.3.2011 converted to regular terms; the purported renewals of 16.2.2013 and 15.5.2013 were immaterial because the statutory provision was mandatory.

p. 3
03

Entitlement to notice pay, accrued leave and outstanding salary

Holding

One month's notice pay, leave for the last 12 months only, and July 2013 salary awarded

Reasoning

The court awarded one month's salary in lieu of the statutorily required notice. The claim for 17 years of leave failed for lack of continuous service and limitation; only leave for the last contract period was granted, and since leave is not accumulable, only the last 12 months (24 days) was payable. July 2013 salary was unpaid and unsubstantiated counterclaims of debts were rejected.

p. 4

Legal principles established

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  • Parties cannot contract to defeat an express provision of the law
  • A seasonal/temporary employee converted to regular employment after six months' continuous service is terminable only by requisite notice
  • Termination without cause does not engage sections 41, 43 and 45 of the Employment Act; breach-of-notice analysis applies instead

Court orders

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  1. 1.Award of one month's salary in lieu of notice of Ksh. 30,000
  2. 2.Award of leave pay for the last 12 months of Ksh. 27,692.30
  3. 3.Award of salary for July 2013 of Ksh. 30,000
  4. 4.Total judgment of Kshs. 87,692.30 subject to statutory deductions
  5. 5.Costs of the suit plus interest from the date of filing suit

Authorities

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Legislation

  • Registration of Wages (Hotel and Catering Trades) OrderRegulation 18(1) and 18(2)
  • Registration of Wages (Hotel and Catering Trades) OrderRegulation 20(1)(c)
  • Registration of Wages (Hotel and Catering Trades) OrderRegulation 9(1)(a)
  • Employment ActSections 41, 43 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act (not expressly cited in the judgment)

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, "Ngambi v Diplomat Hotel Limited (Cause 452 of 2015) [2020] KEELRC 1945 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1945/eng@2020-01-24

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