Olumbe v Standard Global East Africa Limited (Cause 578 of 2017) [2022] KEELRC 54 (KLR)
The bottom line
#A Kenyan casino cook won Kshs 197,000 plus costs because his employer never told him why he was being dismissed or gave him a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was procedurally fair
The dismissal was procedurally unfair because the Claimant was never notified of the intention to terminate or summarily dismiss him on stated grounds, only asked to explain his absence; consequently no hearing on any accusation took place.
Section 41 mandates notification, a hearing and consideration of representations. The Respondent's witness admitted the notice to show cause was verbal. An explanation sought without warning of possible adverse action is not a defence to accusations, and the employee cannot adequately defend himself. Notification being absent, the hearing contemplated by the section could not and did not occur, rendering the dismissal procedurally unfair.
Whether the reasons for dismissal were valid and fair (substantive justification)
The Respondent failed to prove valid and fair reasons; the termination letter cited only general 'gross misconduct' without specificity, and the poor-performance ground was never put to the Claimant before termination.
Under section 43 the employer must prove the reasons for termination. The letter did not specify the misconduct. The poor-performance ground was not one on which the Claimant was called to make representations, and the final warning related to a different misconduct that did not recur. On absenteeism, the Claimant's sickness explanation stood uncontroverted; the Respondent's supervisors were not called, inviting an adverse inference, and clause 7 did not prescribe how medical documents were to be handed over.
Whether the medical document tendered in court was an afterthought
No. Clause 7 of the contract did not prescribe a manner of handing over medical documents, and the Respondent could have tested authenticity or sought hospital verification but did not.
The contract implicitly required handing in the medical document at the earliest opportunity. The Respondent knew from the onset the Claimant relied on the document and could have opposed its production, cross-examined its maker, or written to the hospital to authenticate it. Its insistence on attachment to the 23rd January letter was unfounded.
Which reliefs were available
Notice pay, refund of unauthorized deductions and five months' salary compensation under section 49(1)(c) awarded; transport allowance and public holiday claims declined for want of proof.
Because the summary dismissal was unfair, the employee cannot be allowed to benefit from his infractions by going unrewarded with notice pay. Deductions were unrebutted and unexplained. Compensation is discretionary subject to a 12-month ceiling, and five months' gross salary was warranted given the Respondent's substantial deviation from legal expectations and length of service.
Legal principles established
#- Procedural fairness under section 41 of the Employment Act requires notification, a hearing and consideration of the employee's representations; absence of any component vitiates the termination.
- A verbal call for an explanation, without notifying the employee of the intention to terminate on stated grounds, does not satisfy section 41.
- A termination letter that generally cites 'gross misconduct' without specifying the conduct does not enable the employer to discharge its burden under section 43.
- A final warning for a particular misconduct is only a basis for graver sanction if the same misconduct recurs.
- An adverse inference may be drawn against an employer who fails to call its own supervisors to controvert an employee's claim of having reported sickness.
Court orders
#- 1.One month's salary in lieu of notice - Kshs. 30,000
- 2.Refund of unauthorized deductions - Kshs. 17,000
- 3.Compensation pursuant to section 49[1][c] of the Employment Act - Kshs. 150,000 (5 months' gross salary)
- 4.Interest on the awarded sums from the date of filing the suit till full payment
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44, 45 and 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olumbe v Standard Global East Africa Limited (Cause 578 of 2017) [2022] KEELRC 54 (KLR)", Case Analysis (2022). ELRC Cause No. of 2017 (Memorandum of Claim dated 24th February 2017, filed 27th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/54/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.