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ELRCPartially AllowedCause No. 2559 of 2016· [2021] KEELRC 1832 (KLR)

Michael Odhiambo Opiyo v Bidco Africa Limited [2021] KEELRC 1832 (KLR)

Employment and Labour Relations Court
16 April 2021
MOMaureen Onyango
6,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Bidco unfairly dismissed its engineer, awarding him nearly Kshs.1.5 million because his disciplinary process was rushed and unfair.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a shift engineer on 9th January 2007, alleged he was verbally promoted in 2008 to Plant (Lead) Engineer (Refrigeration/Air Conditioning and Compressed Air Systems) but never confirmed in writing, and that after joining the Kenya Chemical and Allied Workers Union in 2013 he suffered victimization including stopped salary increments. Following a breakdown of the Winter Chiller machine in December 2015, he was issued a show cause notice with 24 hours to respond and was summarily dismissed on 21st December 2015 for neglect of duties and sabotage. The respondent denied the promotion, the victimization and the unfairness of the dismissal, and computed lower terminal dues based on basic pay. The court framed three issues: promotion, fairness of termination, and entitlement to reliefs. Relying on section 10(6) and (7) of the Employment Act and the Martin Ireri Ndwiga decision, the court found the claimant had been serving as a head of department despite the absence of a confirmation letter, as admitted in the respondent's own dismissal letter. On procedure, the court held that the 24-hour notice, the failure to notify the hearing date in advance, and the presence of the claimant's accusers on the disciplinary committee breached natural justice; the internal disciplinary manual was never availed. The dismissal was found both substantively and procedurally unfair and reduced to normal termination, though the victimization claim failed for lack of evidence. The court awarded December 2015 gross salary, one month's pay in lieu of notice, maximum compensation of twelve months' wages of Kshs.1,474,308, and CBA overtime and increment arrears computed on basic pay per payslip. The acting allowance claim was rejected. Costs were awarded to the claimant, with interest from filing suit on specified items and from judgment on the rest.

Key legal issues

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01

Whether the claimant was verbally promoted to Plant (Lead) Engineer

Holding

The court found that the claimant had been serving as head of department despite absence of a letter, and the respondent's own dismissal letter admitted this; the respondent's failure to regularize the position could not be protected

Reasoning

The claimant was employed as a shift engineer and claimed a verbal promotion in 2008 with a promise of a formal letter that never came. He repeatedly sought confirmation, including by letter dated 20th August 2010. The respondent denied the promotion but its own summary dismissal letter referred to the claimant as a head of department. Relying on section 10(6) and (7) of the Employment Act and the Martin Ireri Ndwiga decision, the court held the burden lay on the employer to disprove the alleged term, which it failed to discharge.

p. 5
02

Whether the summary dismissal was substantively and procedurally fair

Holding

The dismissal was both substantively and procedurally unfair and was reduced to normal termination

Reasoning

The claimant received only a 24-hour show cause notice, was not informed of the disciplinary hearing date in advance and was approached during lunch hour to attend. His accusers sat on the disciplinary committee, breaching natural justice, and the respondent failed to avail its internal disciplinary manual or attendance list. Applying sections 41, 44 and 45 of the Employment Act and the authorities cited, the court found the process irregular and cosmetic and reduced the dismissal to normal termination, entitling the claimant to notice pay and compensation.

p. 8
03

Whether the claimant was victimized for joining the union

Holding

The claim failed for want of sufficient evidence despite the constitutional protection of freedom of association

Reasoning

The claimant alleged that his salary increments were stopped and a plot hatched to frustrate him after he joined the Kenya Chemical and Allied Workers Union in 2013. The court acknowledged that Articles 36 and 41(2)(c) of the Constitution protect freedom of association and bar victimization of employees for exercising that right, but found the claimant had not adduced sufficient evidence to prove victimization actually took place, so no relief flowed from that head.

p. 8
04

Reliefs due following the finding of unfair termination

Holding

The claimant was awarded December 2015 gross salary, one month's pay in lieu of notice, maximum compensation of twelve months' wages, and CBA overtime and salary increment arrears, but acting allowance was refused

Reasoning

Having reduced the summary dismissal to normal termination, the court awarded December 2015 salary and pay in lieu of notice on gross pay under section 49(1) of the Employment Act. Considering length of service, the circumstances of termination and the respondent's conduct, maximum compensation of twelve months' wages was granted. CBA arrears were awarded on the basis of basic salary as per payslip, and the acting allowance claim failed because the payslip showed a special and additional allowance were already paid.

p. 9

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment rests on the employer
  • Fair hearing in disciplinary process requires notification of date, venue, time and charges in good time to enable the employee prepare
  • An employer must not ambush an employee in disciplinary proceedings; adequate time to prepare a defence must be given

Court orders

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  1. 1.Payment of gross salary for December 2015 of Kshs.122,589.00
  2. 2.Payment in lieu of notice based on gross pay as per Section 49(1) of the Employment Act of Kshs.122,589.00
  3. 3.Maximum compensation of twelve months' wages in the sum of Kshs.1,474,308.00
  4. 4.Overtime and salary increment arising from the CBA calculated on the basis of the Claimant's actual basic salary earned as per payslip
  5. 5.Respondent to pay the Claimant's costs of the suit
  6. 6.Interest at court rates from date of filing suit for items (a), (b) and (d) and from date of judgment for the rest of the award until payment in full

Authorities

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Legislation

  • Employment ActSections 8, 9, 10(1), 10(6), 10(7), 12, 41, 44, 45, 49(1), 51
  • Fair Administrative Actions ActSections 3 and 4(3)
  • Constitution of Kenya, 2010Articles 36, 41(1), 41(2)(c), 47, 48, 50, 159(2)(d)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Martin Ireri Ndwiga v Olerai Management Company
    [2017] eKLR
  • Alphonse Maghanga Mwachanya v Operation 680 Limited
    (2013) eKLR
  • Margaret Auma Ingwe v Kenya Power and Lighting Co. Limited
    (2015) eKLR
  • Jones Okero Momanyi v Public Service Commission
    [2016] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction) over an unfair termination and breach of contract claim under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Michael Odhiambo Opiyo v Bidco Africa Limited [2021] KEELRC 1832 (KLR)", Case Analysis (2021). Cause No. 2559 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1832/eng@2021-04-16

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