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ELRCPartially AllowedCause No E744 of 2021· [2024] KEELRC 2348 (KLR)

Kodi v Safarilink Limited (Cause E744 of 2021) [2024] KEELRC 2348 (KLR)

Employment and Labour Relations Court
30 September 2024
3,745 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld an airline employee's dismissal for refusing to work during COVID-19, but awarded her nearly Kshs.600,000 in unpaid house allowance.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1st June 2006 as a Customer Service Officer, sued for unfair termination and unpaid terminal dues after her employment was terminated on 19th May 2021 for refusing to report to work on 27th and 28th March 2021 during the COVID-19 lockdown despite having confirmed she would report. She sought a declaration of unfair termination, one month's salary in lieu of notice, unpaid leave days, house allowance, service pay, 12 months' compensation, general and special damages, costs and interest. The Respondent maintained she disobeyed legitimate instructions from a superior and that all dues were paid. The court framed two issues: whether termination was unfair and whether the Claimant was entitled to the reliefs sought. On substance, the court held the Respondent genuinely believed the Claimant had disobeyed a legitimate instruction from a person in authority, invoking Sections 43(2) and 44(4)(e) of the Employment Act, the band of reasonable responses test, and noting that senior managers stand in the place of the Managing Director. Having confirmed she would report, the Claimant could not rely on the days being her off-days; trustworthiness is essential in employment. On procedure, the Claimant did not contest that she received a notice to show cause, responded, attended a hearing, and was heard on appeal, satisfying Section 41. The termination was held neither unfair nor unlawful. On reliefs, the declaration, notice pay, leave days, 12 months' compensation, service pay (she was an NSSF member under Section 35(6)(d)) and general/special damages claims were all declined for want of merit or proof. However, the payslips and appointment letter showed no consolidation of house allowance, and the court awarded house allowance at 15% of basic salary for 3 years, Kshs.590,116.54. Each party was ordered to bear its own costs. Judgment was delivered virtually at Nairobi on 30th September 2024.

Key legal issues

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01

Substantive fairness of termination

Holding

Respondent had a valid and fair reason - refusal to obey a legitimate instruction from a person in authority to report for duty during COVID-19 exigencies

Reasoning

The notice to show cause and termination letter identified refusal to obey legitimate instructions to report on 27th March 2021. Although the contract referred to disobedience of the Managing Director, Section 44(4)(e) extends to commands from any person placed in authority, and senior managers stand in the Managing Director's place. The Claimant confirmed she would report but did not, offering intoxication as an excuse and failing to communicate unavailability, breaching trustworthiness essential in employment.

p. 6
02

Procedural fairness of termination

Holding

Procedure complied with Section 41 of the Employment Act and was fair

Reasoning

The Claimant did not contest the process. She received and responded to the notice to show cause, attended the disciplinary hearing, was terminated, appealed and was heard on appeal. Applying Section 45(5) parameters, the employer acted in accordance with justice and equity.

p. 7
03

Entitlement to house allowance

Holding

Awarded at 15% of basic salary for 3 years (Kshs.590,116.54) as salary was not consolidated

Reasoning

Housing is a statutory right under Section 31 of the Employment Act. The appointment letter referred to 'bank gross salary' and payslips showed basic income with no housing allowance entry, indicating no consolidation. As a statutory prescription, it was awarded for three years only.

p. 8
04

Entitlement to service pay

Holding

Not payable as Claimant was an NSSF member

Reasoning

Payslips showed NSSF deductions and the Claimant never pleaded or testified she was not an NSSF member. Section 35(6)(d) disqualifies NSSF members from service pay; membership in the employer's pension scheme for only 3 years did not alter this.

p. 8

Legal principles established

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  • A valid and fair reason plus fair procedure are the essentials of a lawful termination
  • Under Section 43(2) of the Employment Act, the employer need only show a reasonable basis for its genuine belief in the reasons for termination, a partly subjective test
  • House allowance is not payable where the contract or CBA consolidates salary, but statutory entitlement stands absent consolidation
  • An employee requested to work on an off-day must communicate unavailability, and having confirmed availability cannot later rely on it being an off-day

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent for unpaid house allowance of Kshs.590,116.54 (15% of basic salary for 3 years)
  2. 2.Claim for unfair/unlawful termination dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 35(6)(d)
  • Employment ActSections 41, 43, 44, 45 and 47(5)
  • Employment ActSection 44(4)(e)
  • Employment ActSection 43(2)
  • Employment ActSection 45(5)
  • Employment ActSection 31
  • Employment ActSections 41 and 51
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (13)

  • Daniel Gisora Nyakundi V Kenya Airways Ltd
    (2018) eKLR
  • Michael Namuwa Wanyera V Central Isiolo Ltd
    (2023) eKLR
  • Kenfreight (EA) Ltd V Benson K. Nguti
    (2016) eKLR
  • Joseph Mwaniki Nganga V United Millers Ltd
    (2022) eKLR
  • Reuben Ikatwa & 17 others V Commanding Officer British Army Training Unit Kenya & another
    (2017) eKLR
  • David Wanjau Muhoro V Ol Pejeta Ranching Ltd
    (2014) eKLR
  • Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Galgalo Jarso Jillo V Agricultural Finance Corporation
    (2021) eKLR
  • Kenya Revenue Authority V Reuwell Waithaka Gitahi & 2 others
    (2019)
  • British Leyland UK Ltd V Swift
    (1981) IRLR 91
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; judgment references Article 159(2)(d) and Article 48 of the Constitution in delivery directions

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, "Kodi v Safarilink Limited (Cause E744 of 2021) [2024] KEELRC 2348 (KLR)", Case Analysis (2024). Cause No E744 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2348/eng@2024-09-30

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