Janes Awinja Enock v Premium Cleaning & Pests Control Limited [2020] KEELRC 964 (KLR)
The bottom line
#A Kenyan court refused an unfair termination claim because the employee ignored lawful work instructions, but still awarded her unpaid leave, public holiday and rest day pay.
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 unfair or whether the claimant absconded duty / committed gross misconduct justifying summary dismissal
- 2.Whether the claimant was underpaid contrary to the applicable Wage Orders
- 3.Whether the claimant is entitled to pay for annual leave, public holidays, rest days and overtime
- 4.Whether the claimant is entitled to house allowance
- 5.Whether the wage advances and loan should be offset against terminal dues
- 6.What remedies and reliefs should issue
Key legal issues
#Whether termination of the claimant's employment was unfair
The claim for unfair termination failed; the claimant's refusal of new work targets and failure to attend work amounted to gross misconduct under section 44 of the Employment Act
The claimant declined to sign the new work targets and handed over part of her work tools while retaining some. The court held that even if she disputed the new targets, her recourse was not to decline lawful instructions but to communicate her concerns to the employer. Failure to abide lawful instructions is gross misconduct, and her conduct effectively frustrated her own employment rather than constituting unfair termination by the respondent.
Whether the claimant was entitled to annual leave, public holiday and rest day pay
Partially allowed: annual leave of 22.5 days at Ksh.9,475.20, public holiday pay for 9 days at Ksh.6,247.38, and rest day pay for 28 Sundays at Ksh.15,603.70 awarded
The employer's records did not show annual leave taken or paid in lieu, so leave accrued from 5th January 2016 to February 2017. The claim of 40 days' public holiday work was an exaggeration since only 9 gazetted holidays fell in the period. Work on two Sundays each month was not challenged and was compensated as work over and above the normal hours.
Whether the claimant was underpaid and denied house allowance
Both claims failed; the wage of Ksh.10,400 from January 2016 was commensurate with the minimum Wage Orders inclusive of 15% house allowance, and the conversion from casual to contract terms was lawful
The court found the mode of converting the claimant from casual employment (at Ksh.500 per day) to contract terms by letter dated 5th January 2016 lawful and legitimate under sections 37 and 10 of the Act. The gross wage of Ksh.10,400 matched the minimum wage of Ksh.9,020 plus 15% house allowance. Records filed by the respondent were not materially challenged.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
- An employee who declines lawful and reasonable work instructions commits gross misconduct justifying summary dismissal under section 44 of the Employment Act
- Sections 37 read with section 10 of the Employment Act allow an employer to convert employment from casual terms to contract terms
- The employer bears the burden of keeping work records and must file them with the court in a dispute under sections 10(6) and (7) of the Act
- The employer must take loans and wage advances into account before payment of terminal dues under sections 17 and 19 of the Act
Court orders
#- 1.Judgment entered for the claimant with award of pay for public holidays of Ksh.6,247.38
- 2.Award of pay for work on rest days of Ksh.15,603.70
- 3.Award of annual leave pay of Ksh.9,475.20
- 4.The dues paid to abide the provisions of section 49(2) of the Employment Act
- 5.The claimant to attend at the respondent's offices for clearance and payment of the dues
- 6.Certificate of Service to issue in accordance with section 51 of the Act upon handover of work tools
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court over a claim of unfair termination and terminal dues (Employment Act, 2007)
Relief refused
#Notice pay
Termination claim failed; claimant's conduct of declining lawful instructions amounted to gross misconduct frustrating her own employment
Compensation for unfair termination
Unfair termination claim failed
Underpayments going back to November 2012
Wages paid were in accordance with the applicable Wage Orders; conversion from casual to contract terms was lawful under sections 37 and 10 of the Act
House allowance
Wage was inclusive of house allowance in accordance with the Wage Orders
Overtime pay for weekday hours
Work hours from 8am to 5.30pm on working days did not exceed one hour for assessment of overtime; Saturday hours compensated any overtime
Costs
No costs order appears in the disposition; the judgment is silent on costs despite the claimant having sought costs.
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.
Accordingly, judgement is hereby entered for the claimant with the award of pay for public holiday’s ksh.6, 247.38; pay for work on rest day’s ksh.15, 603.70; annual leave pay ksh.9, 475.20; the dues paid should abide the provisions of section 49(2) of the Act.
The claimant shall attend at the respondent’s offices for clearance and payment of the dues.
…For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer…
Section 44(3) and (4) (e) allow the employer to sanction the employee with summary dismissal for breach of the employment contract and failure to take lawful and reasonable work instructions.
Section 37 read together with section 10 of the Act allow the employer to convert employment from casual terms to contract terms.
Such conduct of declining to take lawful directions and instructions of the employer and thus failure to attend work effectively frustrated her own employment. The claim for unfair termination of employment is without foundation.
Issues in the judgment
#Date of employment stated inconsistently within the judgment
Length of service stated inconsistently - the claimant pleads 51 months while the defence pleads 30 months, and the court's awards appear based on the defence's timeline
The judgment makes no express costs order despite the claimant's plea for costs and the defence's request for dismissal with costs
The court awards dues but the disposition does not state the offset treatment of the wage advances and loan it found existed under sections 17 and 19 of the Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Janes Awinja Enock v Premium Cleaning & Pests Control Limited [2020] KEELRC 964 (KLR)", Case Analysis (2020). Cause No. 238 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/964/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.