Kudoyi Michael v Leo Investments Limited [2021] KEELRC 1229 (KLR)
The bottom line
#The Employment and Labour Relations Court ruled the hotel unfairly dismissed its IT Executive for skipping a fair hearing, awarding him about KES 690,000.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness under Section 41 of the Employment Act
The summary dismissal was unfair because the Respondent did not afford the Claimant an opportunity to respond to the allegations of insubordination before dismissal
Section 41 requires the employer to explain the reasons for contemplated termination, hear the employee's representations, and allow accompaniment by a colleague or union representative. Although the Respondent alleged insubordination, no evidence showed the Claimant was informed in advance of a disciplinary hearing, supplied with the charges, or told of his right to be accompanied. The opportunity to be heard is a precondition even for summary dismissal under Section 44.
Proof of reasons for termination under Sections 43 and 45
The Respondent failed to demonstrate valid reasons and compliance with fair procedure, rendering the termination unfair
Section 43 places the burden on the employer to prove the reasons for termination, being matters the employer genuinely believed to exist at the time. Section 45(2) renders termination unfair where the employer fails to prove valid reasons and procedural compliance. The Respondent's allegation of insubordination was not established through a fair process, so the dismissal fell under Section 45(2).
Entitlement to reliefs: leave, accrued salary, notice pay and compensation
Leave dues recomputed on a 26-day month formula, salary accrued to the date the termination letter was received, one month's notice pay, and 4 months' salary compensation awarded; general damages refused
Leave of 43 days was uncontroversered and, under Sections 10 and 74, unproduced employment records shift the burden to the employer; but the daily rate was recomputed as salary ÷ 26 × 43. Accrued salary ran only to 10th April 2019 when the termination letter was emailed, as the Claimant was denied access from 28th March 2019. Under Section 49(1)(a), one month's notice pay was awarded; considering Section 49(4) factors, including nearly three years of service, 4 months' salary compensation was reasonable. General damages were unjustified.
Constructive dismissal raised in submissions
Not found; the allegation was not pleaded and parties are bound by their pleadings
Although the Claimant's submissions framed the Respondent's conduct (locking out, transfer, early termination) as constructive dismissal, no such claim appeared in the Statement of Claim nor was it raised at the hearing. Further, the Claimant was actually issued with a letter of termination. The court declined to admit the contention at the submissions stage.
Legal principles established
#- An employer bears the burden under Section 41 of the Employment Act to inform the employee of the charges, afford a proper opportunity to prepare and be heard, and hear and consider representations before summary dismissal
- Where an employer fails to prove the reason for termination, the termination is deemed unfair under Section 45
- It is the employer's burden to keep and produce employment records; absent such records the burden to disprove the employee's averments shifts to the employer
- Parties are bound by their pleadings; a contention raised for the first time at submissions cannot be admitted for determination
Court orders
#- 1.Payment in lieu of leave of KES 162,247.60
- 2.Payment of accrued salary up to 10th April 2019 of KES 37,731.92
- 3.Payment in lieu of notice of KES 98,103.00
- 4.4 months' salary as compensation of KES 392,412.00 (Total Award KES 690,494.52)
- 5.The Respondent shall issue the Claimant with a Certificate of Service forthwith
- 6.The Respondent shall pay the Claimant's costs of this suit
- 7.The decretal sum shall attract interest at court rates from date of judgment until payment in full
- Jurisdiction invoked
- First-instance employment and labour relations dispute within the ELRC's mandate under Article 162(2) of the Constitution (Employment Act, 2007 claims); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution, Section 1B of the Civil Procedure Act and Order 21 Rule 1 of the Civil Procedure Rules (COVID-19 directions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kudoyi Michael v Leo Investments Limited [2021] KEELRC 1229 (KLR)", Case Analysis (2021). Cause No 256 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1229/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.