Dexter Omollo v Ole Sereni Limited [2021] KEELRC 803 (KLR)
The bottom line
#A Kenyan court upheld a hotel's right to instantly dismiss an employee who solicited a bribe, but he still had to be paid for his suspension days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant's summary dismissal on allegations of soliciting a bribe from a client was illegal, unlawful or unfair
- 2.Whether the claimant is entitled to pay for the 7 days of suspension
- 3.Whether the claimant is entitled to payment of salary until retirement age
- 4.Whether the claimant is entitled to severance pay
- 5.Whether the claimant is entitled to accrued leave days up to retirement
Key legal issues
#Fairness of the summary dismissal
The dismissal was justified; the claimant was given notice, a show cause letter and a disciplinary hearing, at which he admitted asking for a token of appreciation
The court found there was a complaint against the claimant, he was invited to defend himself, and he failed to address the allegations of soliciting for a bribe. He did not contest the disciplinary proceedings nor challenge the text messages from his phone demanding 'tea' and a token of appreciation. The employer thus complied with sections 41 and 44 of the Employment Act, and the dismissal was neither illegal nor unfair.
Entitlement to pay for suspension period
Salary for the 7 days of suspension is payable at Ksh.29,517 based on the last earned salary of Ksh.126,500
The court held that employment terminated on 26 April 2018 and for the entire period of employment, including the suspension, the salary due is payable. It computed 7 days of the monthly salary of Ksh.126,500 as Ksh.29,517 and awarded that sum.
Claim for salaries until retirement age
Not justified since the dismissal was justified and the claimant rendered no labour after 26 April 2018
Relying on D.K. Njagi Marete v Teachers Service Commission, the court held that anticipatory salaries for years up to retirement would not be a fair remedy where the employee no longer renders labour and should mitigate loss. The claimant's claim for payment until age 55 therefore failed.
Claim for severance pay
Not due because the termination was not a redundancy
Severance pay attaches to redundancy under the Employment Act. Since the claimant was dismissed for gross misconduct and not declared redundant, the claim for severance pay had no factual or legal foundation and failed.
Legal principles established
#- An employer may summarily dismiss an employee under section 44(3) and (4)(g) of the Employment Act where the employee commits, or on reasonable and sufficient grounds is suspected of committing, a criminal offence against or to the substantial detriment of the employer, provided the employee is first afforded a hearing under section 41(2).
- Salary for the period actually worked, including a period of suspension before termination, remains payable despite a justified dismissal.
- Anticipatory salaries up to retirement age are not a fair and reasonable remedy where the employee no longer renders labour to the employer.
Court orders
#- 1.The claims made are found without justification save for payment for 7 days during suspension
- 2.The respondent to pay the claimant Ksh.29,517 being salary due for the 7 days of suspension
- 3.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (fair and summary dismissal claims under sections 41, 43, 44 and 45)
Relief refused
#Payment of salary for the remainder of term until 55 years (Ksh.2,783,000)
Summary dismissal was justified; the claimant did not offer his labour to the respondent after termination
Severance pay (Ksh.1,518,000)
The case was not a redundancy, so severance pay is not due
Accrued leave days to retirement (Ksh.3,289,000)
Must fail for the same reasons as the claim for salaries until retirement age
Costs
Each party shall bear own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the claims made are found without justification save for the payment for 7 days during suspension all at Ksh.29,517. Each party shall bear own costs.
On the claim and the response, the court finds no matter of illegal, unlawful or unfair summary dismissal. Such was justified in this case.
The only condition is that the employer but abide the provisions of section 41(2) of the Act, which requires the employee be invited to defend himself on the allegations made and upon which a decision must issue.
A grant of anticipatory salaries and allowances for a period of 11 years left to the expected mandatory retirement age of 60 years, would not be a fair and reasonable remedy.
Issues in the judgment
#The judgment states the claimant did not offer his labour after '26 th April, 2016' although the termination date is elsewhere stated as 26th April, 2018 - an apparent typographical error in the year
The disciplinary hearing is stated as 18th April, 2018 while earlier the claimant is recorded as having been invited to a disciplinary hearing on 25th April, 2018 - inconsistent dates
The judgment twice refers to 'the employer' where 'the employee' is evidently meant in the passage on summary dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dexter Omollo v Ole Sereni Limited [2021] KEELRC 803 (KLR)", Case Analysis (2021). Cause No. 1288 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/803/eng@2021-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.