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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 1610 of 2015

Jonah Ramogi Oduya v Tradewinds Aviation Services Limited [2021] KEELRC 1473 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
11 March 2021
2,948 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that dismissing a worker without a hearing is unfair, even during probation, and unfairly treating similar employees differently is discrimination.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a ramp agent on a two-year term contract from 9 September 2014 at a gross monthly salary of Ksh.14,953.08, was suspended on 4 December 2014 following the theft of two mobile phones from passenger luggage on flight KQ 528. He was told Kenya Airways had blacklisted him and was directed to report for disciplinary action on 15 December 2014, but was instead issued with a letter of summary dismissal. He claimed remuneration for the unexpired term, caution money, salary deductions during suspension and damages for discrimination. The respondent did not call any witness despite an adjournment, and made no defence on the discrimination claim. The court framed four issues: legality of the termination, discrimination, remedies, and costs. It held that the summary dismissal without a hearing breached the mandatory provisions of section 41 of the Employment Act, 2007, even where the claimant was on probation and payment in lieu of notice was made; compensation of three months' salary (Ksh.44,859.24) was awarded. On discrimination, applying Article 27 of the Constitution and section 5 of the Employment Act, the court found the respondent had failed to justify dismissing the claimant while reinstating a similarly situated colleague, and awarded Ksh.50,000 in damages. The claim for the full term salary was redressed through the compensatory award; the caution money claim failed for lack of proof. Judgment was entered for the claimant with a declaration of unlawful and unfair termination, compensation, discrimination damages, Ksh.8,995 for unlawful wage deduction, and costs of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether employment terminated unlawfully, unfairly and wrongfully
  2. 2.Whether there was discrimination against the claimant
  3. 3.Whether the remedies sought should issue
  4. 4.Who should pay costs

Key legal issues

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01

Whether the summary dismissal was lawful and fair

Holding

The dismissal was unlawful and unfair for failure to give the claimant a hearing after suspension, contrary to section 41 of the Employment Act, 2007

Reasoning

The claimant was suspended and required to report for disciplinary action on 15 December 2014 but was instead issued with a letter of summary dismissal without a hearing. The defence that he was on probation and could not be redeployed was insufficient. Payment in lieu of notice did not cure the procedural failure. The mandatory provisions of section 41 were breached, entitling the claimant to compensation, assessed at three months' gross salary.

p. 3
02

Whether the claimant was discriminated against

Holding

Yes - the claimant, similarly situated with other employees, was singled out and dismissed while another (Nthei) was reinstated without justification

Reasoning

The claimant worked in a team of eight on KQ 528 when theft occurred; the culprit, Wanjala, was identified. The claimant, Ochore and Nthei were suspended, but Nthei was reinstated while the claimant and Ochore were dismissed. The respondent made no defence, evidence or submissions on discrimination, leaving its blacklisting/redeployment explanation bare. Differential treatment of similarly situated employees without justification equals discriminatory treatment contrary to Article 27 of the Constitution and section 5 of the Employment Act.

p. 4

Legal principles established

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  • An employer must give an employee a hearing before summary dismissal pursuant to section 41 of the Employment Act, 2007, even during probation and even where payment in lieu of notice is made
  • Differential treatment of similarly situated employees without justification amounts to discriminatory treatment

Court orders

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  1. 1.A declaration that the respondent terminated the claimant's employment unlawfully and unfairly
  2. 2.Compensation awarded at ksh.44,859.24
  3. 3.Damages for discrimination against the claimant Ksh.50,000
  4. 4.Deduction of wages ksh.8,995
  5. 5.Costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

Relief refused

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Salary and allowances for the remainder of the 2-year term contract (Ksh.366,009)

Addressed by compensatory award of 3 months' salary; no claim that the claimant failed to secure alternative employment

p. 4

Caution money of Ksh.12,000

The letter of employment does not provide for such amount and there was no record of how or why it was paid

p. 4

General and exemplary damages for discrimination of Ksh.3,000,000

Award of Ksh.50,000 found appropriate instead

p. 4

Costs

Costs of the suit awarded to the claimant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the sanction of summary dismissal and before the claimant was allowed to give his defences after his suspension failed the mandatory provisions of the law pursuant to section 41 of the Employment Act, 2007. Such is unlawful and without justification and the claimant is entitled to compensation.
p. 3procedural fairness before summary dismissal
the arithmetic equals to discriminatory treatment as there was differential treatment of employees similarly situated but treated different without any justification.
p. 4discrimination - differential treatment of similarly situated employees
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms;
p. 4final orders
a) A declaration that the respondent terminated the claimant's employment unlawfully and unfairly;
p. 4final orders - declaration

Issues in the judgment

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minor

Judgment inconsistently refers to the theft flight as KQ 528 and KQ 523

minor

Judgment dates the disciplinary report inconsistently as 15th December, 2014 and 15th December, 2015

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, "Jonah Ramogi Oduya v Tradewinds Aviation Services Limited [2021] KEELRC 1473 (KLR)", Case Analysis (2021). Cause No. 1610 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1473/eng@2021-03-11

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