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ELRCDismissedELRC CASE NO. 827 OF 2019· [2024] KEELRC 2041 (KLR)

Otiato v Federation of Kenya Employers (Cause 827 of 2019) [2024] KEELRC 2041 (KLR)

Employment and Labour Relations Court
26 July 2024
4,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an employee's summary dismissal, finding the employer followed a fair process and had valid, justified reasons.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as PR and Communications Manager, sued seeking a declaration that his summary dismissal was wrongful, unlawful and unfair, payment of Kshs. 8,187,183, and costs. His dismissal followed his early departure from work on 13th December 2016 and late reporting on 14th December 2016, for which he attributed his absences to illness at Nairobi Hospital. He contended the dismissal breached section 45(2) of the Employment Act and his contract, and was actuated by malice by his supervisor. The Respondent maintained the dismissal was for valid reasons and followed a fair process, citing the Claimant's persistent lateness and indiscipline, and his failure to communicate absence by end of day as his contract required. The court framed two issues: whether the summary dismissal was unfair and whether terminal dues were payable. On procedure, it found compliance with section 41 - notification through show cause letters, response, a disciplinary hearing, and consideration of representations. The allegation regarding the CEO's membership of the disciplinary committee was unpleaded and unsupported. On substance, the court held the reasons for dismissal genuinely existed, the Claimant having admitted the absences and late reporting, and that the persistence of his infractions justified summary dismissal under sections 43, 44 and 45. The claim for terminal dues failed as the Claimant was not entitled to notice pay upon summary dismissal and his dues voucher indicated payment. The claim was dismissed with costs to the Respondent.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The summary dismissal was procedurally fair - the Claimant was notified via show cause letters, responded, was heard at a disciplinary hearing, and his representations were considered.

Reasoning

The court traced the sequence from the three show cause letters to the dismissal letter and found each of the three section 41 components satisfied: notification, hearing and consideration. The claim that the CEO's membership on the disciplinary committee vitiated the process failed because it was not pleaded, and no evidence established that the supervisor's presence vitiated the process.

p. 6
02

Substantive justification for the summary dismissal

Holding

The reasons for dismissal (leaving work early on 13th December 2016 and reporting late on 14th December 2016 without communication or authorization) genuinely existed and justified dismissal, particularly given the Claimant's persistent infractions.

Reasoning

The court held the Respondent discharged its burden under section 43 as the Claimant did not deny the absences and lateness. His contractual obligation to communicate absence due to sickness by end of the working day was breached without plausible explanation. Persistence of the infractions, in light of past cautions, made summary dismissal justifiable under sections 44 and 45.

p. 8
03

Whether the dismissal was premeditated/malicious

Holding

The claim of premeditation was rejected; nothing in the dismissal letter supported it.

Reasoning

The Claimant's contention that the dismissal letter showed premeditation was found baseless. The allegation that the CEO's participation on the disciplinary committee rendered the process flawed was not pleaded and was unsupported by evidence; the court noted that submissions cannot substitute for evidence.

p. 5
04

Entitlement to terminal dues

Holding

The Claimant was not entitled to notice or pay in lieu of notice upon summary dismissal, and his dues voucher indicated he was paid.

Reasoning

Having upheld the dismissal, the court noted the Claimant received earned leave and dues; the recalled payment was later corrected and the Final Dues Voucher executed on 24th January 2017 implied payment. A summarily dismissed employee is not entitled to notice or payment in lieu thereof.

p. 9

Legal principles established

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  • An employer contending that a summary dismissal was fair must demonstrate the reasons for dismissal (section 43), that the reasons were valid and fair (section 45(2)), and conformity with the procedural fairness requirements of section 41 of the Employment Act.
  • The procedural fairness requirement under section 41 embodies three components: notification of the reasons, an adequate opportunity to be heard, and consideration of the employee's representations before a final decision.
  • Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded.
  • The list of acts amounting to gross misconduct under section 44(4) is not closed; any act can amount to gross misconduct if it has the impact recognised under section 44(3).
  • Submissions are never a substitute for evidence.

Court orders

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  1. 1.The Claimant's claim is dismissed with costs.

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 44 (including 44(3) and 44(4))
  • Employment ActSection 47(5)
  • Employment ActSection 45(7)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (3)

  • Independent Electoral and Boundaries Commission & Ano. Vs Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Adetoun Oladeji [NIG] v Nigeria Breweries PLC
    SC 91/2002
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44, 45 and 47(5))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Otiato v Federation of Kenya Employers (Cause 827 of 2019) [2024] KEELRC 2041 (KLR)", Case Analysis (2024). ELRC CASE NO. 827 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2041/eng@2024-07-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.