Kodi v Safarilink Limited (Cause E744 of 2021) [2024] KEELRC 2348 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Substantive fairness of termination
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
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.
Procedural fairness of termination
Procedure complied with Section 41 of the Employment Act and was fair
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.
Entitlement to house allowance
Awarded at 15% of basic salary for 3 years (Kshs.590,116.54) as salary was not consolidated
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.
Entitlement to service pay
Not payable as Claimant was an NSSF member
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.
Legal principles established
#- 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
#- 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.Claim for unfair/unlawful termination dismissed
- 3.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.