Odhiambo & another v Sarova Hotels Limited & another (Cause 787 of 2019) [2023] KEELRC 146 (KLR)
The bottom line
#Sarova Panafric was ordered to pay a former porter eight months' salary after a Kenyan court found his dismissal both unjustified and procedurally unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer had a valid and fair reason for termination
No - of the four grounds, forgery was unproven, the hearing-related ground was invalid, and the two remaining grounds (absence and use of undesignated entrance) did not merit termination
The court assessed each ground against the evidence. The forgery allegation had no evidential support and the ground of failure to attend the hearing was invalid because the employer could not prove service of the email. The one-day absence warranted no termination and the gate breach merited only a warning. The employer therefore failed to prove a valid and fair reason under section 45(2) of the Employment Act.
Whether the procedure under section 41 of the Employment Act was complied with
No - the employer withheld information requested, could not prove service of the addendum inviting the hearing, and terminated without hearing the employee
The claimant requested the evidence underlying the charges and none was supplied; the email allegedly conveying the hearing notice was never proved as dispatched or received in time; no minutes of any hearing were produced; and the claimant was condemned unheard. The mandatory provisions of section 41 were thus breached.
Whether termination was on account of union activities
Not proved - neither party adduced evidence of the alleged union activities
Although the claimant alleged his tribulations began on joining the union, he did not disclose when he joined or the forms the tribulations took, and the respondent produced no records of recruitment or complaints. The allegation fell on both sides for want of proof.
Quantum of compensation under section 49 of the Employment Act
Equivalent of eight months' salary awarded, taking account of 21 years of service, past commendation and the claimant's contributory conduct
The court considered the length of service, the employee's previously clean disciplinary record and accolades, his failure to respond to the notice to show cause, and his confrontational conduct including the provocative use of the undesignated entrance, concluding on eight months' salary as fair.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness, and failure to establish both renders the termination unfair
- An employee facing disciplinary charges is entitled to the information relied upon by the employer to facilitate preparation of a rebuttal
- Where an employee fails to attend a disciplinary hearing, the employer should accord a second chance through a properly served notice
- Claims of the employee not pleaded with particulars and not proved by evidence fail as special damages
Court orders
#- 1.Equivalent of eight (8) months salary compensation
- 2.Costs of this suit
- 3.Interest at court rates from the date of judgment till payment in full
- 4.All other claims dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo & another v Sarova Hotels Limited & another (Cause 787 of 2019) [2023] KEELRC 146 (KLR)", Case Analysis (2023). Cause No 787 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/146/eng@2023-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.