Ogutu v Intercontinental Nairobi (Employment and Labour Relations Cause 1453 of 2018) [2024] KEELRC 1757 (KLR)
The bottom line
#Kenya's Employment Court dismissed a hotel director's Kshs 79.5 million claim, finding his dismissal for serving wine after hours was fair, justified and non-discriminatory.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was for a valid reason following a fair procedure
Termination was for a valid reason and followed a fair procedure; the claimant admitted serving wine to guests in his office late at night contrary to the respondent's codes, was heard in writing and orally, and had a recent warning for a similar offence
Section 43 places the burden on the employer to prove reasons it genuinely believed to exist. The claimant admitted entertaining two guests with sample wine in his office between 11:43 p.m. and 1:27 a.m. He answered the NTSC in writing and was heard by a disciplinary committee. His conduct breached the code of ethics and business conduct, he was recently warned for a similar offence, and noise disturbance was reported. The court would not substitute its view for the employer's once genuine belief and fair procedure were shown.
Whether the claimant was defamed
The defamation claim failed: the evidence was hearsay, no retraction notice was issued, and the claim was filed more than twelve months after the alleged defamation and was thus time-barred
The claimant did not attend the alleged staff meeting of 10/3/2017 and adduced no admissible direct or indirect evidence of the defamatory words. He failed to issue the requisite notice to retract. Section 4(2) of the Limitation of Actions Act requires libel or slander actions to be brought within twelve months; the demand was issued on 18 January 2018 and the suit filed on 22 October 2018, over a year after the alleged defamation.
Whether the claimant was racially discriminated against in remuneration
No discrimination proved; the claimant gave bare allegations while the respondent produced pay slips and credible business reasons for salary differences and discharged the burden under section 5 of the Employment Act read with Article 27
The claimant produced no documentary evidence of predecessors' salaries; his figures were contradicted by pay slips produced by RW1. RW1 gave credible reasons for the disparities: overseas transfers carried their home-country salaries, and the hotel's poor financial performance in 2013-2014 dictated lower pay. The respondent also had an anti-discrimination policy and had elevated many Kenyans to senior positions. Mere differentiation is not per se discrimination.
Whether the claimant was entitled to the reliefs sought
All reliefs refused as the three limbs of the claim failed
Having found the termination lawful, the defamation claim time-barred and unproved, and no discrimination established, the court dismissed the entire suit. Considering the claimant's long service and that the respondent hotel is no longer operational, the court nonetheless ordered each party to bear their own costs.
Legal principles established
#- Fair termination requires both substantive justification and procedural fairness
- The employer bears the burden of proving the reason(s) for termination, being matters it genuinely believed to exist
- Mere differentiation or unequal treatment does not per se amount to unlawful discrimination; the differentiation must be unreasonable or arbitrary
- An employer has the mandate to decide what is permissible in the workplace and employees are bound by the contract and policy documents
- A court will not substitute its reasons for those of an employer once the employer proves it genuinely believed the conduct amounted to gross misconduct
Court orders
#- 1.The claims under the three limbs of unlawful termination, defamation and discrimination are dismissed
- 2.The claimant is not entitled to any of the reliefs sought
- 3.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over a claim for wrongful and unfair termination, discrimination and defamation arising from employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogutu v Intercontinental Nairobi (Employment and Labour Relations Cause 1453 of 2018) [2024] KEELRC 1757 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1757/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.