Andrew Kiplimo Rono v Rosoga Investmenets Limited [2020] KEELRC 1070 (KLR)
The bottom line
#A Kenyan court ruled a driver's dismissal unfair because his employer pressured him to resign instead of properly inviting him to a disciplinary hearing.
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 substantively and procedurally unfair contrary to sections 41, 43 and 45 of the Employment Act
- 2.Whether the claimant is entitled to compensation under sections 45 and 49 of the Employment Act
- 3.Whether the claimant is entitled to unpaid annual leave pay
- 4.Whether the claimant is entitled to service pay
- 5.Whether the claimant is entitled to house allowance
- 6.Whether the claimant is entitled to overtime pay
- 7.Whether the claimant is entitled to underpayments of wages
Key legal issues
#Procedural fairness of the termination
Termination was procedurally unfair as the claimant, while on suspension, was never issued with the disciplinary hearing invitation and instead was pressured to resign.
The claimant was on suspension when the disciplinary process was commenced. The hearing invitation letter dated 25th September 2015 never reached him and bore no address. The manager instead telephoned him and urged him to resign, even drafting a resignation text for him. The court held that service of a hearing notice on a suspended employee requires personal service, post or recall to office, and the attempt to procure resignation was bad faith and an unfair labour practice.
Substantive fairness of the termination
Termination was also substantively unfair; no valid and genuine reason justified it.
The respondent alleged the claimant broke the crankshaft of truck KAH 258C, but the claimant testified he was driving a different vehicle and merely moved KAH 258C, reporting unusual sounds to the supervisor. No investigation or pre-analysis evidence substantiated the allegation. The court found no genuine, valid and reasonable cause existed, contrary to sections 43 and 45 of the Employment Act.
Compensation for unfair termination
Compensation of three months' gross wage awarded, reduced on account of the claimant's cautionary notices.
Under sections 45 and 49 of the Employment Act compensation is due for unfair termination, but section 45(5) requires the court to consider the employee's work record. The claimant had several cautionary notices regarding his work performance, so the court awarded three months' gross wage based on the last gross wage of Ksh.21,220 per month.
Leave pay claim
Declined; the leave application forms appeared to be forgeries and the claim was caught by limitation under section 90.
The claimant alleged forgery of leave forms whose signatures matched his own in the verifying affidavit. Further, having taken his 2015 leave, any earlier unpaid leave was a continuing injury to be pursued within the limitation period in section 90 of the Act.
Underpayment of wages
Awarded at Ksh.136,776.20 based on analysis of applicable Wage Orders.
Comparing the statutory Wage Order entitlements for a driver (truck) in Nakuru with actual wages paid between May 2010 and April 2013, the court found underpayments totalling Ksh.136,776.20; later periods showed overpayments which were not deducted.
Legal principles established
#- An employee on suspension must be served with the notice of disciplinary hearing personally, by post or by being called back to the office; failing which and instead inducing resignation is bad faith and an unfair labour practice.
- Even with pay in lieu of notice, termination must abide the mandatory procedural and substantive requirements of sections 41 and 43 of the Employment Act.
- An employee's poor work record, including cautionary notices, is a relevant factor in assessing compensation under section 45(5) of the Employment Act.
Court orders
#- 1.A declaration that the respondent terminated the claimant's employment unfairly
- 2.Compensation awarded at Ksh.63,660
- 3.Underpayments awarded at Ksh.136,776.20
- 4.The claimant shall be issued with a certificate of Service
- 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
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination of employment)
Relief refused
#Notice pay
The letter terminating employment already offered notice pay
Leave pay for 2011 and 2012
Leave application forms appeared forged and any unpaid leave would be a continuing injury caught by limitation under section 90 of the Act
Service pay
Payment statements showed statutory deductions, disqualifying service pay
House allowance from 1st September 2008 to 31st December 2011
Claims going back to 31st December 2011 are time-barred under section 90 of the Act
Overtime pay
Claims were general, exaggerated and not substantiated in testimony
Costs
Costs of the suit awarded 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.
to therefore fail to issue the claimant with a hearing notice following his suspension, then have the manager Mr Too invite the claimant to resign through his text message with a draft of the possible letter of resignation is to act in bad faith, it is contrary to fair labour relations and an unfair labour practice.
there must be a hearing and there must exist a genuine, valid and reasonable cause to justify termination of employment.
Accordingly, judgement here hereby entered for the claimant against the respondent in the following terms;
(a) A declaration that the respondent terminated the claimant’s employment unfairly; (b) Compensation awarded at ksh.63,660; (c) Underpayments awarded at Ksh.136,776.20; (d) The claimant shall be issued with a certificate of Service; (e) Costs of the suit.
Issues in the judgment
#Internal contradiction on date of show cause notice: defence pleads it was dated 22nd September 2015 while Mr Too testified it was issued on 4th September 2015.
Plea on leave days repeats the year 2011 three times, apparently a typographical error for 2013 and 2014.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Kiplimo Rono v Rosoga Investmenets Limited [2020] KEELRC 1070 (KLR)", Case Analysis (2020). Cause No. 141 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1070/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.