KENNEDY ONDERI v RILEY SERVICES LIMITED [2012] KEELRC 29 (KLR)
The bottom line
#A Kenyan court confirmed that employers must hear employees before firing them, even for gross misconduct, but must also pay accrued leave and can't deduct uniform costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the claimant's employment was procedurally fair under Section 41(2) of the Employment Act, 2007
- 2.Whether the claimant is entitled to leave pay, pro rata leave, house allowance, miscalculated May 2010 deductions, notice pay and uniform dues
Key legal issues
#Procedural fairness in termination for gross misconduct
The termination was procedurally fair because the respondent gave the claimant the opportunity to make representations on the incident
Section 41(2) of the Employment Act obliges an employer to notify and hear an employee before termination, even for gross misconduct. The court found the claimant was summoned to explain the incident and made his statement, satisfying the hearing obligation. The Union also made representations on his behalf before he chose to come to court.
Entitlement to accrued leave on termination
Leave payments of Kshs. 30,870.00 were due and owing as the claimant never took annual leave and this was unrebutted
The claimant testified he never took annual leave during his employment, which was not refuted by the respondent in pleadings, evidence or submissions. The court held that accrued leave must be paid in cash on termination for any reason.
Lawfulness of uniform deductions
The Kshs. 2,000 uniform deduction was unlawful; uniforms are tools of trade the employer must provide
Uniforms were requirements of the job and the employer's duty to provide. The deduction was not contemplated under Section 19 of the Employment Act and was not detailed in the contract as required by Section 10. The court awarded Kshs. 2,000.
Unrefunded miscalculated deductions
Kshs. 600 omitted in terminal benefits calculations was payable to the claimant
The court reviewed the records submitted and found the respondent omitted the sum in calculating terminal dues for work done, warranting an award of Kshs. 600.
Legal principles established
#- An employer who wishes to terminate an employee's services must notify the employee and hear any representations before deciding, even in cases of gross misconduct or payment in lieu of notice
- Leave due to a terminated employee must be paid in cash notwithstanding the termination
- Deductions from an employee's salary must be contemplated under Section 19 of the Employment Act and, where applicable, detailed in the contract under Section 10
- Ignorance of the contents of a signed contract is no defence at law
Court orders
#- 1.Declaration that the termination of the Claimant was procedural and no notice pay is due
- 2.Payment of leave days earned amounting to Kshs. 30,870.00
- 3.Payment of miscalculated deductions amounting to Kshs. 600.00
- 4.Payment of uniform dues deducted amounting to Kshs. 2,000.00 (total dues Kshs. 33,470.00)
- 5.Costs of the suit to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Industrial Court of Kenya (Labour relations dispute jurisdiction)
Relief refused
#Pro rata leave for 6 months (Kshs. 2,572.00)
Not proved in evidence; no evidence or rationale for the claim
House allowance from December 2009 to May 2010 (Kshs. 5,826.00)
The daily rate of Kshs. 350.00 was all-inclusive per the signed contract; ignorance of the signed contract is no defence
Salary in lieu of notice (Kshs. 7,350.00)
Termination was found to be procedurally fair, so no notice pay is due
Compensation for wrongful dismissal
Termination found to be procedural and lawful
Costs
The costs of the suit to the Claimant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is even applicable where the employee is accused of gross misconduct.
I note that every employee is entitled to his or her annual leave and where leave is due to an employee who is declared terminated for any reason, the same must be in cash.
It was the duty of the respondent to provide these tools of trade to its employees at all material time.
1. That the termination of the Claimant was procedural and no notice pay is due;
The costs of the suit to the Claimant.
Issues in the judgment
#The judgment records the incident as reported on 20th May 2011 while elsewhere it is consistently dated 20th May 2010
The claimant states he was never given an appointment letter and describes the contract attached to the response as a strange document, yet the court relies on the signed contract to reject the house allowance claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENNEDY ONDERI v RILEY SERVICES LIMITED [2012] KEELRC 29 (KLR)", Case Analysis (2012). Cause 380 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/29/eng@2012-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.