Ogao v Camigen Multi-Cargo Services Ltd (Employment and Labour Relations Cause 56 of 2018) [2024] KEELRC 47 (KLR)
The bottom line
#A Kenyan court ruled that firing a worker for refusing unsafe work with an injured hand was unfair, awarding him Kshs 208,060 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was for a valid reason and followed fair procedure
The dismissal was substantively and procedurally unfair: the conduct did not amount to insubordination and no disciplinary hearing was held
RW1 had no record of any disciplinary hearing and could not say what transpired at the head office. The claimant credibly showed he could not roll drums because of an injured hand, which the supervisor knew. Refusing an unreasonable instruction while injured was not insubordination. Sections 36, 41, 43 and 45 of the Employment Act were violated.
Quantum of compensation under section 49(1)(c) and (4) of the Employment Act
Six months' salary (Kshs 150,480/=) awarded as compensation for the unfair dismissal
The claimant had served 5 years and 8 months without blemish, did not contribute to the dismissal, was not subjected to a fair procedure, was unprepared for sudden job loss, and the dismissal over a sick hand was an aggravating circumstance. He was not compensated for the job loss and suffered loss and damage.
Entitlement to terminal benefits claimed
Notice pay and refunds for boots, overalls and medical certificates awarded; claims for NSSF dues, leave pay, service pay, house allowance, underpayments and certificate of service dismissed for want of proof or admission of payment
The court awarded notice pay as the dismissal was without notice. Refunds were awarded because the employer failed to produce records of payment. The remaining heads failed because the claimant admitted receiving the payments or did not prove entitlement.
Legal principles established
#- Under section 43(1) and (2) of the Employment Act, the employer bears the onus of proving that a dismissal was for a valid reason and that fair procedure was followed
- Failure to hold a disciplinary hearing before summary dismissal renders the dismissal procedurally unfair
- An employer's failure to produce records of payment (such as refunds of boots, overalls and medical certificates) is adverse to the employer
Court orders
#- 1.Kshs 150,480/= in compensation (six months' salary) for unlawful and unfair summary dismissal
- 2.Kshs 25,080/= in lieu of one month notice
- 3.Kshs 32,500/= refund (boots Kshs 12,500/=; overalls Kshs 10,000/=; annual medical certificates Kshs 10,000/=)
- 4.Total award Kshs 208,060/= with interest at court rates from date of judgment till payment in full
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 36, 41, 43, 45 and 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogao v Camigen Multi-Cargo Services Ltd (Employment and Labour Relations Cause 56 of 2018) [2024] KEELRC 47 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/47/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.