Omondi v Halifax Estate Agency Ltd (Cause 273 of 2017) [2023] KEELRC 760 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee or an independent contractor
The claimant was an employee earning a monthly wage of Kshs 40,000/-, giving the court jurisdiction under section 12 of the ELRC Act.
Applying the definition of employee in section 2 of the Employment Act and the tests in Everette Aviation, the court looked at the documentation and mode of payment. Payment vouchers described Kshs 40,000 as basic pay, paid consistently monthly, and the respondent itself wrote to the Ministry of Labour stating the claimant was employed as a sales representative. That established a contract of service.
Whether the termination was substantively justified
The reasons given (negligence in underquoting prices, failure to assist a client) were vague, unsubstantiated and inconsistent with reasons later given to the labour office; no valid reason was proved.
The termination letter was general and did not specify the act of negligence, dates or particulars. Abscondment was never raised in the termination letter. The alleged underquoting incident had been settled long before termination. The reasons given to the labour office differed from those in the letter, showing the respondent was unclear why it terminated the claimant, failing the section 43 and 45 tests.
Whether the termination was procedurally fair
The termination was procedurally unfair as the claimant was never invited to a disciplinary hearing as required by section 41 of the Employment Act.
No hearing was conducted before termination, so there was no proof of the grounds relied upon. Section 41 is in mandatory terms and requires a hearing in the presence of a fellow employee or union representative of the employee's choice. Its breach renders the dismissal procedurally unfair regardless of the employer's reasons.
Whether the termination amounted to pregnancy discrimination
Discrimination on account of pregnancy was not proved; the claim of discrimination failed.
The court held that proof of discrimination is scientific and requires evidence. While the termination was wrongful and unfair, the court found no evidence linking it to the claimant's pregnancy, and the respondent maintained it did not know of the pregnancy. The declaration of violation of Article 27 was tied to the absence of a valid reason, not proven discrimination.
Legal principles established
#- Consistent monthly pay described as basic pay in payment vouchers evidences an employment relationship notwithstanding absence of a written contract.
- Section 41 of the Employment Act is mandatory; termination without a disciplinary hearing is procedurally unfair.
- An employee discharges the burden under section 47(5) by establishing a prima facie case of unfair termination, shifting the burden to the employer to justify the termination.
Court orders
#- 1.One month salary in lieu of notice of Kshs 40,000/- awarded to the claimant
- 2.Three months' gross salary compensation for wrongful and unfair termination of Kshs 120,000/- awarded
- 3.Unpaid salary for 22 days of Kshs 29,333.33/- awarded
- 4.Maternity leave pay of Kshs 120,000.00/- awarded
- 5.Total award of Kshs 309,333.33/-
- 6.Claimant awarded costs of the suit
- 7.Interest on the award at court rates from the date of judgment till full payment
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, the claimant being found to be an employee
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi v Halifax Estate Agency Ltd (Cause 273 of 2017) [2023] KEELRC 760 (KLR)", Case Analysis (2023). Memorandum of Claim dated 7th February 2017, filed 13th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/760/eng@2023-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.