Kenya Kazi Services Ltd v Dickson Onjwaya Wasike & 42 others [2021] KEELRC 800 (KLR)

Although overtime appeared in the pleadings, the claim relied on a 2013 Court award not referenced in the Memoranda of Claims, denying the Appellant an opportunity to respond. On proof, none of the testifying Respondents gave particulars of prescribed working hours, and the payslips produced showed overtime was paid at the end of each month, so no further entitlement was established.

The contract made gratuity conditional on five continuous years' service and excluded summary dismissal. The Court held gratuity is payable as a general rule where the contract provides for it, and that eligibility turned on whether the dismissals were unfair. Having found unfair dismissal, the Respondents were entitled to full or pro-rata gratuity.

Section 10(3)(a)(i) of the Employment Act requires an employer to outline accrued leave entitlement at termination. The Appellant produced records demonstrating payment of outstanding leave days into the Respondents' bank accounts, which the Magistrates Court failed to take into account, amounting to an error of fact and law.

The Respondents were summarily dismissively but were issued show-cause notices setting out allegations, invited to make written responses, and afforded oral hearings attended by trade union representatives. The Court held the section 35(1) notice was not mandatory and, if it was, the failure was cured by the show-cause notices.

Sections 43 and 45 place the burden on the employer to prove the validity and fairness of reasons. The Appellant's witnesses had no proof of a strike and did not produce minutes or formal communications. The Respondents testified they reported to work but were denied access, and the named persons who allegedly locked them out were not called, with no explanation for the failure.

The Magistrates Court erred in law by treating damages for loss of salary for the remainder of the term and trauma as duplicates of compensation under section 49(1)(c). The appellate court, applying the section 49(4) factors and the Respondents' roughly two years' service on fixed-term contracts, assessed compensation at four months' gross salary for each Respondent.

Since the Court concluded the dismissals were unfair, it found no reason to disturb the Magistrates Court's award of salary in lieu of notice and left it undisturbed.

The Respondents contended the trial Magistrate erred in not awarding salaries for the balance of the contractual terms. The Court endorsed the Ugandan Supreme Court authority that compensation for the unexpired period of employment is not attainable in law, and dismissed this head of the cross-appeal.