Nyikuli v Floral Heritage Limited & another (Employment and Labour Relations Cause 1388 of 2016) [2023] KEELRC 2714 (KLR)
The bottom line
#A Kenyan court ruled a housekeeper's dismissal without notice or a hearing was unfair, awarding her terminal dues, but she lost overtime claims she couldn't prove.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair
The dismissal was procedurally unfair under sections 41 and 45(2) of the Employment Act as the Claimant was not notified of grounds or heard
Section 41 is couched in mandatory terms and requires an employer to notify and hear an employee before termination on grounds of misconduct, poor performance or incapacity. The Claimant testified she was informed of the termination without any accusations being put to her or a chance to respond; the evidence was unrebutted as the Respondent did not appear or file a defence. The burden of proving adherence to procedural fairness lies on the employer, and the Respondent discharged none of it.
Whether the termination was substantively justified
The dismissal was substantively unjustified as the Respondent adduced no evidence of a valid and fair reason
Section 43 places on the employer the burden of proving the reasons for termination, failing which the termination is deemed unfair under section 45(2). The court characterised the termination as a summary dismissal under section 44(3), valid reasons for which must fall within the gross misconduct catalogue in section 44(4) or similar conduct. The Respondent tendered no evidence at all and could not discharge that burden.
Entitlement to notice pay, leave, service pay, underpayments and compensation
The Claimant was awarded notice pay, three years' leave, service pay (not being an NSSF member before 2015), salary underpayments per the applicable Wage Orders, and six months' gross salary as compensation under section 49(1)(c)
The contract was terminable by 28 days' notice under section 35, so notice pay was due under section 36. Leave is a statutory right under section 28(1), limited to three years by section 90. Her NSSF statement beginning in 2015 showed she was not an NSSF member from 2012 to 2015, so the section 35(6) exclusion from service pay did not apply for that period. Underpayment flows from section 48 of the Labour Institutions Act, minimum wages being non-contractable. Compensation of six months' gross salary reflected the casual disregard of fair labour practices and her nearly four years of service.
Whether the overtime and public holiday claims were proved
The claims for Saturdays, Sundays and public holidays worked failed for lack of specific proof
An employee alleging work on public holidays must identify the specific holidays, and one claiming overtime must establish the hours and when worked; global figures suffer from generalities. Counsel's attempt to supply details in submissions could not cure the evidentiary gap because submissions are not evidence and cannot substitute for pleadings or testimony.
Legal principles established
#- A failure by a defendant to file a defence does not lessen the claimant's duty to prove her case to the requisite standard
- Under section 47(5) of the Employment Act the employee bears the initial burden of establishing that termination occurred, whereupon the burden shifts to the employer to justify it
- Submissions cannot take the place of evidence
- Minimum wages under a Wages Order cannot be out-contracted; the statutory minimum prevails over any contrary contractual term
- An employee claiming overtime or public holiday pay must prove the specific days and hours worked; global figures unsupported by evidence attract no relief
Court orders
#- 1.A declaration that the Claimant's termination of employment was unlawful and unfair
- 2.Payment of one month's salary in lieu of notice of Kshs 10,954.70
- 3.Payment for annual leave accrued in 3 years of Kshs 23,003.40
- 4.Payment of service pay of Kshs 21,908.00
- 5.Payment of salary underpayment for 3 years of Kshs 38,287.40
- 6.Compensation pursuant to section 49(1)(c) of the Employment Act, 2007 of Kshs 65,724.00
- 7.Interest on the terminal dues at court rates from the date of judgment until payment in full
- 8.The Respondent to bear the costs of the suit
- 9.The Respondent to issue the Claimant with a Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 36, 41, 43, 44, 45, 47(5), 49, 51, 90) and the Labour Institutions Act, 2007 (section 48)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyikuli v Floral Heritage Limited & another (Employment and Labour Relations Cause 1388 of 2016) [2023] KEELRC 2714 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2714/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.