Kenya Hotels and Allied Workers Union v Panari Hotel (Cause 1751 of 2016) [2023] KEELRC 3179 (KLR)
The bottom line
#A Kenyan court ruled the dismissals had valid reasons but were procedurally unfair because the employer couldn't prove employees were heard, awarding two months' salary.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for the dismissals
The Respondent had valid and fair reasons to dismiss all four grievants who prosecuted their claims
Applying Section 43(2) of the Employment Act and the preponderance of probabilities, the court found the allegations against each grievant substantiated: Victor Omuga's apology letter contradicted his testimony; Apollo Opondo admitted the assault in a signed disciplinary form; Jane Munyua's evidence on the guest incident was contradictory; Stephen Thoronjo failed to account for Kshs.500/= he received and closed without recording. The 'band of reasonableness' test was applied.
Procedural fairness under Section 41 of the Employment Act
Termination was procedurally flawed and thus unfair
The Respondent adduced no evidence of notices to show cause, invitations to disciplinary hearings, or minutes of proceedings. A disciplinary form signed by an employee is not an invitation to a hearing nor minutes. Jane Munyua's alleged appeal hearing of 18th November 2014 had no invitation letter or minutes. The absence of this documentation meant the court could not find the grievants were heard as Section 41 requires.
Entitlement to compensation under Section 49(1)(c)
Compensation limited to the equivalent of two months' salary despite unfair procedure
Although procedurally unfair, the grievants substantially contributed to their dismissals by commission or omission, had varying lengths of service (approximately 5 to 9 years), most had prior warnings, and the Respondent was willing to pay dues. Balancing these Section 49(4) factors, the equivalent of two months' salary was held fair rather than the 12 months claimed.
Legal principles established
#- For a termination to pass the fairness test, an employer must prove both a valid and fair reason and procedural fairness
- Section 41 of the Employment Act, 2007 is mandatory and non-compliance renders termination procedurally unfair
- The employer bears the burden of proving valid reasons for termination, assessed on the 'band of reasonableness' test
- Without notices to show cause, invitations to disciplinary hearings and minutes, the court cannot find an employee was accorded a hearing under Section 41
Court orders
#- 1.Finding that termination of the grievants' employment by the Respondent was unprocedural and thus unfair
- 2.Equivalent of two months' salary as compensation under Section 49(1)(c) of the Employment Act
- 3.Respondent to pay any unpaid terminal dues as computed in the respective dismissal letters for grievants who did not receive payment
- 4.Salary for 3 days worked in April 2014 for Victor Ochieng Omuga
- 5.Costs of the suit to the Claimant
- 6.Interest from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Panari Hotel (Cause 1751 of 2016) [2023] KEELRC 3179 (KLR)", Case Analysis (2023). Nairobi ELRC Cause No. 1751 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3179/eng@2023-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.