Okeyo v Diamond Trust Bank (K) Ltd (Cause 1 of 2019) [2023] KEELRC 2594 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the discharge signed by the claimant waived his right to sue
The claimant did not freely waive the right to sue; the employer failed to show that the consequences of the discharge were explained to him
Discharge agreements normally waive the right to sue, but employees are vulnerable at termination due to loss of income and emotional turbulence. Considering this power imbalance, fairness requires the employer to show mutual engagement and explanation of legal consequences before requiring execution of a discharge. The respondent adduced no such evidence, so the discharge did not bar the claim.
Procedural fairness of the summary dismissal
The claimant was not afforded an opportunity to be heard before dismissal
Although show-cause and hearing invitations were allegedly posted to the claimant's Nairobi postal address, certificates of posting were never produced in court. The respondent knew the claimant had been arrested, yet did not serve notices through his supervisor or at the workplace. The claimant's uncontroverted testimony that he reported to his supervisor daily until instructed to stop was not rebutted, and the supervisor was not called to testify.
Substantive fairness of the summary dismissal
The dismissal was not for valid or fair reasons
Under sections 43 and 45 of the Employment Act the employer must prove valid and fair reasons for termination. The alleged reason was absence without communication. However, the claimant's uncontroverted evidence showed he was arrested, released on condition of daily police reporting, and reported to his supervisor every morning until early July 2018 when told not to report, negating the allegation of absence.
Legal principles established
#- When determining whether a release or discharge agreement is vitiated, the trial court should consider whether it was freely and willingly executed and whether the employee was seized of all the relevant information and knowledge
- Given the power imbalance in employment, an employer should place before the court evidence that the legal consequences of a discharge were explained to the employee before execution
Court orders
#- 1.Declaration that the summary dismissal of the claimant was unfair
- 2.Declaration that the claimant is entitled to commuted accumulated leave
- 3.Award of salary in lieu of notice of Kshs 70,669/-
- 4.Award of compensation of Kshs 415,705/- (equivalent of 5 months' gross wages)
- 5.Award of leave of Kshs 5,625/-
- 6.Total award of Kshs 491,999/- to the claimant
- 7.Denial of costs to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, ss 10(3), 43 and 45 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okeyo v Diamond Trust Bank (K) Ltd (Cause 1 of 2019) [2023] KEELRC 2594 (KLR)", Case Analysis (2023). Not stated in the judgment (Employment and Labour Relations Court Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2594/eng@2023-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.