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ELRCDismissedCause No 176 of 2018· [2022] KEELRC 534 (KLR)

Geofrey Orina Obegi v United Millers Limited [2022] KEELRC 534 (KLR)

Employment and Labour Relations Court
10 March 2022
HWHellen Wasilwa
1,642 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a worker's Kshs 3.4 million unfair termination and dues claim because the employer followed proper disciplinary procedures and paid overtime.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from April 2008 as a machine/boiler attendant, was suspended on 31st August 2016 over alleged absenteeism on 29th August 2016 and dishonesty about permission to be away. He responded to the show-cause letter, attended a disciplinary hearing on 14th September 2016, and was terminated on 29th September 2016. He sued for Kshs. 3,434,758.60 comprising overtime pay, public holiday pay, gratuity, salary in lieu of notice and twelve months' compensation for unfair termination, plus costs and interest. The Respondent denied the claim, asserting the Claimant absented himself without permission, that disciplinary procedure under Section 41 of the Employment Act was followed, and that all dues were paid, including Kshs 21,902 paid following the labour office's involvement. The court framed two issues: whether the termination was unfair and unjustified, and whether the Claimant was entitled to the remedies sought. On the evidence, the court found the Claimant admitted absenteeism at the disciplinary hearing and failed to prove he had sought permission from his supervisor; the termination was therefore substantively and procedurally fair and the wrongful termination claim was dismissed. On remedies, the court found the fluctuating payslips evidenced payment of overtime and rest-day remuneration, and that as an NSSF member the Claimant was barred by Section 35(6) of the Employment Act from gratuity. The entire case was dismissed with costs to the Respondent on 10th March 2022.

Key legal issues

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01

Whether the termination was unfair and unjustified

Holding

The termination was substantively and procedurally fair; the claim for wrongful termination was dismissed

Reasoning

The Claimant was terminated for absenteeism on 29.8.2016. He admitted absence due to illness but his claim that he sought permission from his supervisor was not proved. He was issued a show-cause letter, responded to it, and was subjected to a disciplinary hearing at which he admitted absenteeism. The Respondent complied with Sections 41 and 44(4)(e) of the Employment Act, so the termination withstood both the substantive and procedural fairness tests.

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02

Whether the Claimant was entitled to overtime and public holiday pay

Holding

Not entitled; overtime was paid as reflected in fluctuating payslips

Reasoning

RW-1 testified the Claimant was paid a daily rate with additional monies for overtime; the payslips showed fluctuating basic pay indicating extra payments for overtime, weekends and rest days worked. The Claimant did not displace this evidence, and his claim for overtime and public holiday pay therefore failed.

p. 3
03

Whether the Claimant was entitled to gratuity

Holding

Not entitled to gratuity

Reasoning

The court found that as the Claimant was a member of NSSF, Section 35(6) of the Employment Act 2007 barred payment of gratuity, rendering that head of claim untenable.

p. 3

Legal principles established

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  • An employee who is a member of NSSF is not entitled to payment of gratuity under Section 35(6) of the Employment Act, 2007
  • Fluctuating basic pay in payslips may indicate payment of overtime and rest-day remuneration, defeating a claim for overtime arrears

Court orders

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  1. 1.The claim for wrongful termination is dismissed
  2. 2.The Claimant's case fails in its totality and is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(e)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 35(6)

Cases cited (2)

  • Walter Ogal Anuro V Teacher Service Commission [2013] eKLR
    [2013] eKLR
  • Kenya Plantation and Agricultural Workers Union V Sotik Highlands Tea Estate Limited [2016] eKLR
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)

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, "Geofrey Orina Obegi v United Millers Limited [2022] KEELRC 534 (KLR)", Case Analysis (2022). Cause No 176 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/534/eng@2022-03-10

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