[2021] KEELRC 458 (KLR)
The Court found that the Grievant's summary dismissal was unfair because the Respondent failed to afford him an opportunity to be heard, contrary to Sections 35(1)(c) and 41(2) of the Employment Act, 2007. The Grievant's testimony was unchallenged, and the Respondent did not participate in the proceedings or the...
Source-derived case information.
- Citation
- [2021] KEELRC 458 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers; Respondent: Friends Hotel Kakamega Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 283 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; summary dismissal declared unfair; compensation and pay in lieu of notice awarded.
- Legal Topics
- Unfair Termination, Summary Dismissal, Procedural Fairness, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers
Applicant
Friends Hotel Kakamega Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the summary dismissal of the Grievant was unfair.
- 2 Whether the Grievant was afforded an opportunity to be heard before dismissal.
- 3 Whether the Grievant is entitled to compensation and pay in lieu of notice.
Ratio Decidendi
The Court found that the Grievant's summary dismissal was unfair because the Respondent failed to afford him an opportunity to be heard, contrary to Sections 35(1)(c) and 41(2) of the Employment Act, 2007. The Grievant's testimony was unchallenged, and the Respondent did not participate in the proceedings or the conciliation process. The Court concluded that the dismissal was procedurally and substantively unfair, warranting compensation equivalent to six months' gross salary and one month's salary in lieu of notice. The Grievant was not entitled to service pay as he was contributing to the National Social Security Fund.
Court Disposition
Claim allowed in part; summary dismissal declared unfair; compensation and pay in lieu of notice awarded.
Orders
- The summary dismissal of the Grievant is declared unfair.
- The Respondent shall pay the Grievant Kshs 50,400 as compensation.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 283 OF 2018
KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL
INSTITUTIONS AND HOSPITAL WORKERS... CLAIMANT
VERSUS
FRIENDS HOTEL KAKAMEGA LTD............ RESPONDENT
JUDGMENT
1. The Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers (the Union) sued Friends Hotel Kakamega Ltd (the Respondent) on 22 August 2018, alleging that the summary dismissal of Donald Mudi (the Grievant) was unfair and breach of contract.
2. Although the Respondent accepted and acknowledged service of Notice of Summons and Statement of Claim on 11 April 2019, it did not enter appearance or file a Response.
3. When the Cause came up for directions on 15 March 2021, the Court directed that hearing proceeds on 24 May 2021.
4. The Union served a hearing notice which was acknowledged by the Respondent’s receptionist on 12 May 2021, but there was no representation on the hearing day.
5. The Grievant’s evidence was taken on 24 May 2021 and the Union filed submissions on 29 June 2021.
6. The Grievant was dismissed through a letter dated 26 February 2016, and the Union reported a trade dispute to the Cabinet Secretary for Labour and he appointed a Conciliator but the Respondent did not appear for conciliation forcing the Union to move to Court.
7. The Grievant’s testimony that he was not afforded an opportunity to be heard was not rebutted or controverted.
8. Section 35(1)(c) of the Employment Act, 2007 requires the employer to issue a written notice of termination of employment.
9. Section 41(2) of the Act on the other hand envisages an oral hearing in cases of summary dismissal.
10. In consideration of the Grievant’s unchallenged testimony and the provisions of the law, the Court will find that the summary dismissal of the Grievant was unfair.
Compensation
11. The Grievant served the Respondent from 2010 to 2016, and in view of the length of service, the Court will award the equivalent of 6-months gross salary as compensation (the gross monthly salary was Kshs 8,400/-).
Salary in lieu of notice
12. The Grievant was not issued with a written notice and the Court will grant the equivalent of 1-month salary in lieu of notice.
Service pay
13. The Grievant was contributing to the National Social Security Fund and thus is not eligible for service pay.
Conclusion and Orders
14. The Court finds and declares that the summary dismissal of the Grievant was unfair and awards him:
i. Compensation Kshs 50,400/-
ii. Pay in lieu of notice Kshs 8,400/-
TOTAL Kshs 58,800/-
15. No order on costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 17TH DAY OF NOVEMBER, 2021
RADIDO STEPHEN, MCIARB
JUDGE
Appearances
For Union Mr Kamuye, Industrial Relations Officer
For Respondent did not participate
Court Assistant Chrispo Aura