[2019] KEELRC 1700 (KLR)
The court found that while the Respondent issued the required one month notice under section 35(1)(c) of the Employment Act, 2007, it failed to comply with section 41 by not affording the Claimant an opportunity to be heard before termination. Furthermore, the Respondent did not attend the hearing or provide...
Source-derived case information.
- Citation
- [2019] KEELRC 1700 (KLR)
- Parties
- Claimant: Ernest Tony Ogutu; Respondent: The Panari Hotel
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1111 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; termination declared unfair; compensation awarded.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Procedural Fairness, Substantive Fairness, Compensation, Reinstatement, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ernest Tony Ogutu
Claimant
The Panari Hotel
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unfair under the Employment Act, 2007.
- 2 Whether the Respondent complied with procedural fairness requirements under section 41 of the Employment Act, 2007.
- 3 Whether the Respondent had valid and fair reasons for terminating the Claimant's employment as required by sections 43 and 45 of the Employment Act, 2007.
Ratio Decidendi
The court found that while the Respondent issued the required one month notice under section 35(1)(c) of the Employment Act, 2007, it failed to comply with section 41 by not affording the Claimant an opportunity to be heard before termination. Furthermore, the Respondent did not attend the hearing or provide evidence to substantiate the alleged poor performance, thus failing to discharge its burden under sections 43 and 45 to prove valid and fair reasons for termination. The Claimant's evidence, including guest feedback, did not support the Respondent's claim of poor performance. Consequently, the court held that the termination was both procedurally and substantively unfair. Given the...
Court Disposition
Claim allowed in part; termination declared unfair; compensation awarded.
Orders
- The termination of the Claimant's employment is declared unfair.
- The Respondent shall pay the Claimant compensation equivalent to one month gross wages, being Kshs 250,000/-.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1111 OF 2015
ERNEST TONY OGUTU..................CLAIMANT
v
THE PANARI HOTEL.................RESPONDENT
JUDGMENT
1. On 3 June 2015, the Panari Hotel (Respondent) issued a one month termination notice to Ernest Tony Ogutu (Claimant), and the reasons given was work performance based shortcomings.
2. The Claimant was aggrieved and on 29 June 2015, he lodged a Statement of Claim in Court contending that the termination of employment was unfair.
3. The Statement of Claim was filed together with a motion seeking interlocutory relief. The said application was heard on 31 July 2015. The application was dismissed.
4. On 21 October 27 November 2017, the Cause was fixed for hearing on 13 February 2018, but on the hearing date, none of the parties was in Court despite being present when the hearing date was scheduled.
5. The Cause next came up for hearing on 27 November 2018, but the hearing aborted because there was no evidence that the Claimant had served a hearing notice upon the Respondent.
6. The Claimant then caused the Cause to be fixed for hearing on 25 March 2019.
7. When the Cause was called out for hearing, the Respondent and its advocate were not in Court. On record was an affidavit of service attesting to service of a hearing notice upon the firm of Mbugua Mureithi & Co. Advocates.
8. The Court was satisfied with the service and allowed the Claimant to proceed.
9. The Claimant gave sworn testimony and produced exhibits.
Unfair termination of employment
Procedural fairness
10. Section 35(1)(c) of the Employment Act, 2007 envisages a written notice of termination of employment of at least 28 days.
11. The Respondent issued a one month notice to the Claimant, which was compliant with the aforesaid proviso.
12. In terms of section 41 of the Act, the employer should afford an opportunity to the employee to make representations before termination of employment.
13. The Respondent did not appear or participate in the proceedings to demonstrate that it complied with the mandatory requirements of section 41 of the Employment Act, 2007 by granting an opportunity to the Claimant to be heard after the issuance of the 1 month notice.
Substantive fairness
14. Apart from procedural fairness, sections 43 and 45 of the Employment Act, 2007 make it incumbent upon an employer to prove the reasons for termination of employment, and that the reasons are valid and fair.
15. The reason given for the termination of the Claimant’s employment was performance.
16. Unfortunately, the Respondent did not file a Response or attend the hearing to discharge the burden.
17. Despite the failure, the Claimant denied that his performance was wanting, and he produced a schedule with hotel guests’ comments/feedback (exhibit 4) for March 2015. There are no untoward comments on the Claimant in the schedule.
18. The Court can therefore conclude that the termination of the Claimant’s employment was not for valid and fair reasons, and it is so found.
Reinstatement
19. Although the Claimant indicated that he wanted to be reinstated, the Court is of the view that this is not a suitable case for reinstatement considering that 3 years have lapsed since the separation.
Compensation
20. The Claimant served the Respondent for about 1 year, and in consideration of the length of service is of the view that the equivalent of 1 month gross wages as compensation would be appropriate (gross wage was Kshs 250,000/-).
Conclusion and Orders
21. The Court finds and declares that the termination of the Claimant’s employment was unfair and awards him
(a) CompensationKshs 250,000/-
22. No order as to costs.
Delivered, dated and signed in Nairobi on this 27th day of March 2019.
Radido Stephen
Judge
Appearances
Claimant in person
For Respondent Mbugua Mureithi & Co. Advocates
Court Assistant Lindsey