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ELRCPartially AllowedCause No. 179 of 2015· [2016] KEELRC 1182 (KLR)

Fred Odhiambo Obura v SGS Kenya Limited [2016] KEELRC 1182 (KLR)

Employment and Labour Relations Court
5 May 2016
HWHellen S. Wasilwa
705 words in judgment
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The bottom line

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A Kenyan court ruled SGS Kenya unfairly fired an employee without a hearing, awarding him Kshs. 126,000 because employers must prove valid reasons and follow fair procedure.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Hardware Technician and Supervisor at a monthly salary of Kshs. 60,000 from February 2014, was suspended by a letter dated 10 December 2014 on allegations of intimidating the Respondent. The allegations were not particularized and, despite the Claimant's request, no recorded copies of the complaints were supplied. He sought an appeal on 16 December 2014, contending that neither the disciplinary hearing nor the appeal complied with the labour laws. The Claimant sued for damages for wrongful and unlawful termination, claiming Kshs. 171,000, loss of earnings, costs and interest. The Respondent did not enter appearance, and the matter proceeded by way of formal proof. In submissions, the Claimant relied on Section 41 of the Employment Act and the case of Mary Chemweno Kiptui v Kenya Pipeline Company Limited. The court found no proof that the Claimant was accorded the hearing contemplated by Section 41, and noted that the Respondent had failed to file a Response to rebut the Claimant's case under Section 45(2), which requires the employer to prove both valid reason and fair procedure. The allegations of intimidation by the Respondent's employees were uncorroborated. The court found the dismissal unfair and unjustified and awarded the Claimant one month's salary in lieu of notice (Kshs. 60,000), unpaid leave for 17 days (Kshs. 34,000) and December salary for 16 days (Kshs. 32,000), totalling Kshs. 126,000, with costs of the suit to the Claimant.

Key legal issues

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01

Whether the termination violated Section 41 of the Employment Act

Holding

There was no proof the Claimant was accorded a hearing as envisaged under Section 41, rendering the dismissal procedurally unfair

Reasoning

The Claimant was suspended on allegations of intimidation which were not particularized. He requested recorded copies of the complaints but none were supplied. At the hearing, the Respondent's witnesses' claims of intimidation were uncorroborated. The court found no evidence of a hearing as required by Section 41 of the Employment Act.

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02

Whether the Respondent discharged its burden under Section 45(2) of the Employment Act

Holding

The Respondent, having not entered appearance or filed a Response, failed to prove valid reasons and fair procedure; the dismissal was unfair and unjustified

Reasoning

Under Section 45(2), the employer must prove that the reason for termination was valid, fair and related to conduct, capacity, compatibility or operational requirements, and that fair procedure was followed. The Respondent did not enter appearance and proceeded undefended, so the burden was not discharged.

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Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and hear and consider any representations, per Section 41 of the Employment Act
  • A termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure under Section 45(2) of the Employment Act

Court orders

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  1. 1.Award of 1 month salary in lieu of notice of Kshs. 60,000
  2. 2.Award of unpaid leave for 17 days of Kshs. 34,000
  3. 3.Award of December salary (16 days) of Kshs. 32,000
  4. 4.Total award of Kshs. 126,000 to the Claimant
  5. 5.Respondent to pay costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Cause filed under the court's employment jurisdiction)

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, "Fred Odhiambo Obura v SGS Kenya Limited [2016] KEELRC 1182 (KLR)", Case Analysis (2016). Cause No. 179 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1182/eng@2016-05-05

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