Onduma v Bontana Hotel Nakuru t/a Rift Valley Adventures and Hotels (Cause 153 of 2015) [2023] KEELRC 16 (KLR)

The court examined the correspondence between the parties and found that although the Respondent levelled many complaints and issued warnings, the Claimant always responded, yet he was never accorded a disciplinary hearing before the summary dismissal of 10/4/2015. The CBA suspension/interdiction procedure (maximum 14 days with full pay pending investigations) was also not followed, the Claimant having been suspended from 10th January 2015 for about four months. Being condemned unheard rendered the dismissal unfair and unjustified.

The Respondent asserted poor performance and rudeness to a guest as reasons for dismissal. However, the dismissal letter cited an incident of 10/1/2015 (arrogance to a customer in room 235 and alleged overcharging) which the Claimant had explained, the hotel price list indicating the underpant charge at Kshs 450. No investigation or hearing preceded the dismissal, so no valid reasons were established, satisfying the unfairness test under sections 41 and 45 of the Employment Act.

Having found the termination unfair, the court awarded three months' pay in lieu of notice, gratuity computed at 1/3 of salary plus 1/3 of house allowance per completed year under Article 27(b) of the CBA for 6 years, the pleaded underpayments of Kshs 443,448 (the CBA providing Kshs 25,800 basic salary with 13% house allowance, which the Respondent's own witness confirmed on cross-examination), and compensation of 8 months' salary under section 49(1)(c) of the Employment Act, using a monthly salary of Kshs 24,486.