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ELRCDismissedNot stated in judgment· [2023] KEELRC 2342 (KLR)

Ngumbao v Carslake Nominees Limited t/a Diani Sea Resort (Cause E101 of 2021) [2023] KEELRC 2342 (KLR)

Employment and Labour Relations Court
28 September 2023
MMM. MBARŨ
2,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a hotel chef's summary dismissal, ruling he squandered his chance to explain kitchen losses and had no contractual right to a bonus.

What this practically means

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Executive summary

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The claimant, employed as an Executive Chef from 1 May 2018 at a monthly salary of Kshs. 170,500, was summarily dismissed on 28 July 2020 for gross misconduct under Section 44(4)(c) and (g) of the Employment Act. He sought two months' notice pay (Kshs. 341,000), six months' bonus for 2020 (Kshs. 85,250), and 12 months' compensation (Kshs. 2,046,000), plus costs. The respondent alleged high food consumption costs relative to guest occupancy, manipulated kitchen requisitions, and losses in the butcher section, prompting an investigation and a show cause notice dated 18 July 2020 setting out nine areas. The claimant responded on 27 July 2020 and attended a disciplinary hearing with a witness, but the respondent found his explanations unsatisfactory and dismissed him. The claimant contended the accusations lacked particulars and that some charges had already been resolved, citing CCTV and guest-driven food costs. The court, per M. Mbarũ J, held that as the officer in charge of the kitchen under a detailed job description, the claimant was accountable for his department; his responses shifted blame and he squandered his chance to account, applying Peter Wangai v Egerton University and Paul Wanyangah v Market Development Trust. The summary dismissal was found procedurally fair and justified; notice pay and compensation were unavailable. Bonus was held discretionary and gratuitous, and not payable in a loss-making COVID year. The suit was dismissed with each party bearing own costs, delivered at Mombasa on 28 September 2023.

Key legal issues

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01

Whether summary dismissal for gross misconduct (neglect of duty and suspected theft leading to food losses) was justified

Holding

Yes. The claimant, as Executive Chef in charge of the kitchen, was accountable for the department's losses; his responses shifted blame and failed to account, justifying summary dismissal under Section 44(4)(c) and (g) of the Employment Act

Reasoning

The notice to show cause dated 18 July 2020 set out nine areas; the claimant responded but blamed the butcher and sous chef rather than accounting for his own supervisory duties. His detailed job description required him to ensure correct stocks and supervise kitchen departments. Neglect of duty constitutes gross misconduct under Section 44(4)(c) of the Employment Act.

p. 5
02

Whether the disciplinary procedure was fair

Holding

Yes. The claimant was issued a show cause notice, responded in writing, attended a disciplinary hearing with a witness, and was heard; he squandered his chance to explain

Reasoning

The court examined the procedure, communication of the decision and handling of the disciplinary process. The claimant was given particulars via the nine-point notice, responded on 27 July 2020, and attended the hearing with his witness Alfred Nguwa. Having been afforded the opportunity to account for his conduct and failing, he cannot blame the employer.

p. 5
03

Whether bonus for 2020 was payable

Holding

No. Bonus is not a contractual benefit and is discretionary/gratuitous; in 2020 the respondent suffered losses due to COVID

Reasoning

The claim sought six months' bonus for 2020 on the basis of past profits and prior payments. The court held that bonus is ordinarily discretionary and gratuitous where not allocated as a contractual benefit, and the respondent did not make profits in 2020 due to the COVID pandemic.

p. 5

Legal principles established

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  • Where an employer alleges neglect of duty leading to loss, the particulars must be particularised to allow the employee a fair chance to respond
  • An employee invited to a disciplinary process who fails to properly account for his conduct squanders that opportunity and cannot claim unfair termination
  • In assessing just and equitable termination, the court examines the procedure adopted, communication of the decision and handling of the disciplinary process
  • Bonus pay not allocated under the contract is discretionary and gratuitous

Court orders

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  1. 1.The claim is found without merit and is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(c) and (g)

Cases cited (2)

  • Peter Wangai v Egerton University
    [2019] eKLR
  • Paul Wanyangah v Market Development Trust t/a Kenya Markets Trust
    [2023] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original employment dispute; no constitutional/statutory provision expressly cited)

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, "Ngumbao v Carslake Nominees Limited t/a Diani Sea Resort (Cause E101 of 2021) [2023] KEELRC 2342 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2342/eng@2023-09-28

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