Ongori v Colour Labels Limited (Cause 1988 of 2017) [2023] KEELRC 863 (KLR)
The bottom line
#A Kenyan employer's summary dismissal of a night-shift worker for taking a supper break was ruled unfair, with the court awarding six months' pay plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to terminate the Claimant's employment
The Respondent failed to prove a valid and fair reason; the only credible evidence was that the Claimant was eating at about 3.00 am with his colleagues' consent, and no evidence linked the conduct to production losses. Termination was substantively unfair.
RWI had no evidence of loitering on previous occasions, no colleague was called, no notice to show cause was issued, and no evidence demonstrated wastage, rejections or losses. The Claimant's uncontroverted testimony was that he took a 20-minute supper break with colleagues' agreement. Even if true, the transgression did not warrant summary dismissal; a warning would have sufficed, as in Moses Stanley Okoth v Hyper Market Ltd.
Whether the disciplinary procedure met the threshold of Section 41 of the Employment Act
The procedure fell short of Section 41: no notice to show cause, no notification of the right to be accompanied, representations not recorded in unsigned minutes, and the termination letter issued the same day without indication of the right of appeal.
RWI admitted there was no notice to show cause, the Claimant was not told of his right to be accompanied, his defence and the panel's questions were not recorded, the minutes were unsigned with no list of attendees, and the footage relied on was not attached. The termination letter dated the same day as the hearing suggested pre-determination.
Whether the Claimant was entitled to the reliefs sought
Declaration of unfair termination, one month's notice pay, 15 days' May salary, 5 months' compensation and certificate of service granted; leave claim, service gratuity and general damages refused.
Notice pay was due because Sections 35 and 36 were not complied with; the 15 days worked in May were unpaid. Leave was not pleaded or proved; service pay was barred by NSSF deductions under Section 35(6); damages were subsumed in the Section 49(1)(c) award; a certificate of service is a statutory entitlement under Section 51.
Legal principles established
#- For a termination to pass the fairness test it must be both substantively justified and procedurally fair.
- The right to appear with a colleague or shop floor union representative at a disciplinary hearing is a statutory right under Section 41 of the Employment Act and failure to accord it renders the hearing irregular.
- Section 41 of the Employment Act requires a notice to show cause, explanation of grounds, and hearing and consideration of the employee's representations before termination for misconduct.
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair.
- 2.One month's salary in lieu of notice.
- 3.Salary for 15 days worked in May 2017.
- 4.Equivalent of 5 months' salary as compensation under Section 49(1)(c) of the Employment Act.
- 5.Certificate of service.
- 6.Costs of the suit to the Claimant.
- 7.Interest at court rates from date of judgment till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court Act (suit for unfair termination of employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongori v Colour Labels Limited (Cause 1988 of 2017) [2023] KEELRC 863 (KLR)", Case Analysis (2023). Cause No 1988 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/863/eng@2023-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.