Ochieng v Techno Service Limited (Cause 1506 of 2016) [2024] KEELRC 1161 (KLR)
The bottom line
#A Kenyan employer was ordered to pay an employee over Kshs 226,000 after wrongfully dismissing him for taking paternity leave and denying him a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively fair
Not substantively fair - the respondent failed to prove the claimant was absent without permission, having admitted he was granted paternity leave, and he returned within the two weeks allowed under section 29(8).
The dismissal email cited absence without permission, but no specific dates were pleaded or stated, and RW1's statement admitted the leave was granted. The claimant commenced leave on 19 March 2016 and returned on 6 April 2016, within the two weeks under section 29(8), excluding weekends. The demands for a marriage certificate and proof of a recognised wife were not anchored in law. The dismissal reason was therefore invalid.
Whether the summary dismissal was procedurally fair
Procedurally unfair - the decision to dismiss was made before the claimant was heard, contrary to section 41.
Section 41 requires the employer to inform the employee of the reasons, allow representations, and consider them before deciding. RW1 admitted the termination letter dated 31 March 2016 was prepared before the claimant was given an opportunity to explain himself. The claimant was therefore not heard and his defence was not considered.
Whether the reliefs sought were available
Entitled to one month's pay in lieu of notice, prorated unutilised leave, service pay, and six months' salary compensation under section 49(1)(c).
No notice was given, so pay in lieu was due under section 36. Unutilised earned leave is a statutory right under section 28. The respondent tendered no evidence that the claimant fell within section 35(5) exclusions, so service pay was granted. Considering the unfair dismissal, lack of hearing, and length of service, the court exercised its discretion under section 49(1) to award six months' gross salary.
Legal principles established
#- Where an employer alleges summary dismissal for gross misconduct, the misconduct must be proved by credible evidence; a mere allegation cannot yield fair termination.
- Demands for a marriage certificate or proof that the mother was a recognised wife are not lawful preconditions to paternity leave; a birth notification or other proof of birth and paternity suffices.
- Paternity leave cannot be deferred by the employer to a time long after the birth of the child.
Court orders
#- 1.A declaration that the summary dismissal against him was unfair.
- 2.Payment in lieu of notice Kshs 23,100.00
- 3.Compensation for unutilised leave days Kshs 4,060.50
- 4.Service Pay Kshs 60,400.00
- 5.Compensation pursuant to section 49[1][c] for unfair dismissal Kshs 138,600.00
- 6.Interest at court rates from the date of this Judgment till full payment.
- 7.Costs of this suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 162(2) of the Constitution (implied from the subject matter); judgment cites section 49(1) of the Employment Act as bestowing authority on the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Techno Service Limited (Cause 1506 of 2016) [2024] KEELRC 1161 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1161/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.