Jonah Ramogi Oduya v Tradewinds Aviation Services Limited [2021] KEELRC 1473 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether employment terminated unlawfully, unfairly and wrongfully
- 2.Whether there was discrimination against the claimant
- 3.Whether the remedies sought should issue
- 4.Who should pay costs
Key legal issues
#Whether the summary dismissal was lawful and fair
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
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.
Whether the claimant was discriminated against
Yes - the claimant, similarly situated with other employees, was singled out and dismissed while another (Nthei) was reinstated without justification
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.
Legal principles established
#- 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
#- 1.A declaration that the respondent terminated the claimant's employment unlawfully and unfairly
- 2.Compensation awarded at ksh.44,859.24
- 3.Damages for discrimination against the claimant Ksh.50,000
- 4.Deduction of wages ksh.8,995
- 5.Costs of the suit
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 (first-instance employment cause)
Relief refused
#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
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
General and exemplary damages for discrimination of Ksh.3,000,000
Award of Ksh.50,000 found appropriate instead
Costs
Costs of the suit awarded to the claimant
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.
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.
the arithmetic equals to discriminatory treatment as there was differential treatment of employees similarly situated but treated different without any justification.
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms;
a) A declaration that the respondent terminated the claimant's employment unlawfully and unfairly;
Issues in the judgment
#Judgment inconsistently refers to the theft flight as KQ 528 and KQ 523
Judgment dates the disciplinary report inconsistently as 15th December, 2014 and 15th December, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.