Dorcas Oside Samwel v Rosoga Investmenets Limited [2020] KEELRC 1066 (KLR)
The bottom line
#A Kenyan court ruled a cleaner's dismissal unfair because her employer could not prove theft or disrespect claims, awarding her notice pay, compensation, and holiday 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 for valid reasons under section 43 of the Employment Act
- 2.Whether the termination followed fair procedure under sections 41 and 45 of the Employment Act
- 3.Whether the claimant is entitled to notice pay, compensation, house allowance, underpayment of wages, overtime pay and public holiday pay
Key legal issues
#Validity of reasons for termination (section 43)
The reasons given - poor performance, pilferage and disrespect - were not proved by evidence and were invalid
The letter of dismissal cited unsatisfactory performance coupled with pilferage of condiments and disrespect towards the supervisor. The court found no record that performance failures were brought to the claimant's attention, and the inference of theft from improved stock consumption after suspension was described as pedestrian, subjective and unscientific. The employer had mechanisms of audit and could have pursued criminal action but did not. Allegations of theft and disrespect were therefore far-fetched and unsupported.
Fair procedure under section 41
Procedure was defective because the supervisor who made the complaint was not called for cross-examination and the record of her evidence at the disciplinary hearing was not taken
Although a disciplinary meeting was held, the supervisor alleged to have been disrespected gave verbal evidence not recorded, and the claimant could not cross-examine her. Section 41 mandates that the employee be able to call a witness of her choice and confront witnesses. Without the supervisor's testimony being tested, the allegation of insubordination remained a blur and the process did not conform to the statute.
Remedies - notice pay, compensation and public holiday pay
Notice pay, one month's compensation and particularised public holiday pay were awarded; other heads failed
The dismissal letter offered to pay for days worked less what was owed, so notice pay was due. Under sections 45 and 49, and noting the claimant went through a disciplinary process, one month's gross pay was appropriate compensation. Public holiday claims were particularised at Ksh.10,648 and unchallenged, so awarded. House allowance, underpayment and overtime claims failed for want of proof or exaggeration.
Legal principles established
#- The employer must establish valid and genuine reasons for termination at the time, and mere perception of theft without proof cannot justify dismissal
- Where an employee is alleged to be insubordinate, the person alleging it should give evidence for interrogation by the employee
- During a disciplinary hearing the employee is entitled to call a witness of her choice and to cross-examine witnesses, a mandatory right to be secured by the employer
Court orders
#- 1.Declaration that the claimant's employment was terminated unfairly
- 2.Compensation of Ksh.12,071.44 (one month gross pay)
- 3.Notice pay of Ksh.12,071.44
- 4.Public holidays pay of Ksh.10,684
- 5.Costs to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44 and 45 invoked)
Relief refused
#House allowance
The wage paid was inclusive of house allowance
Underpayment of wages
Payment records showed wages met or exceeded applicable Wage Order minimums
Overtime pay
Claims were an exaggeration and not credible on a balance of probabilities
Costs
Costs awarded to the claimant against the respondent
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 herein entered for the claimant against the respondent with a declaration that employment terminated unfairly; compensation awarded at ksh.12,071.44; notice pay Ksh.12,071.44; public holidays pay ksh.10,684; and costs.
As otherwise to allege there was theft without proof, to allege there was disrespect of the supervisor without any iota of evidence is a far-fetched ground leading to termination of employment.
The finding that an employee is insubordinate is subjective. The one alleging to have been insubordinate should give evidence for interrogation by the subject employee.
under section 41 of the Act, during the disciplinary hearing the claimant was entitled to call a witness of her choice, such right is to be secured by the employer as it is mandatory.
If such a practice of creating a general perception that one is a thief were to be allowed to take root, then such cannot apply to a single employee whereas the employer has the mechanisms of ensuring workplace policy to address misconduct or gross misconduct of such nature.
Issues in the judgment
#Public holidays pay figure appears as ksh.10,648 in the analysis but ksh.10,684 in the final orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorcas Oside Samwel v Rosoga Investmenets Limited [2020] KEELRC 1066 (KLR)", Case Analysis (2020). Cause No. 140 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1066/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.