The Employment and Labour Relations Court has faulted gas cylinder company, East Africa Spectre, which is associated with former Prime Minister Raila Odinga, for the unfairly dismissing one of its workers.
Justice Agnes Nzei ruled that Gilbert Owuor’s termination in May 2020 was substantively and procedurally unfair, as he was denied a hearing.
He was also not given a three-month termination notice or paid the equivalent of three months’ salary in lieu of notice, as required by the collective bargaining agreement signed by Mr Owuor’s trade union, the Kenya Engineering Workers Union, and the company.
The judge said that this omission rendered the termination procedurally unfair.
The company claimed that underperformance, absenteeism, unreliability and unresponsiveness were the reasons for the terminating Mr Owuor’s contract.
“Mr Owuor is not shown to have been given an opportunity to be heard on the accusations levelled against him, at least regarding the period of his employment between January 1, 2020, and April 30, 2020. This amounted to procedural unfairness. Validity of the alleged reasons for termination was not proved pursuant to Section 45(2)(a) of the Employment Act,” said Justice Nzei.
She ordered the company to compensate him Sh91,000 for unfair dismissal and payment in lieu of notice.
The company was also ordered to pay the trade union Sh40,000 to reimburse them for money spent in the course of litigation.
Mr Owuor joined the company as a casual labourer in June 2016. In 2019, he was offered a one-year contract, effective from January 1 to December 31 of that year.
When the contract expired, it was not renewed, but he continued working. On March 25, 2020, Mr Owuor — along with other employees — was asked to complete official leave forms for 14 days, effective from that date, due to the Covid-19 pandemic.
He stated that, in May of that year, they were called back to work by telephone. However, when he reported for work, he was given a notice of termination of employment. He claimed that the other employees were allowed to continue working because none of them had joined the trade union.
In response, the company, represented by Yvonne Odinga, said the contract could only be renewed upon satisfactory performance. However, upon review, Mr Owuor’s performance was found to be unsatisfactory, hence his contract was not renewed.
The court heard that Mr Owuor’s time at the company was marred by unresponsiveness, unreliability, absenteeism and underperformance to the detriment of the plant.
East Africa Spectre stated that it did not, under any circumstances, exercise its managerial prerogative discriminatively against the Mr Owuor or terminate his employment unfairly based on his union affiliation.
However, the court ruled that, although the company was not obligated to renew the fixed-term contract upon its expiry, the company’s continued retention of the employee in employment for a continuous period exceeding three months, with salary paid at one-month intervals, meant that termination of the employee’s employment could only be effected upon giving appropriate notice.
“Section 35(1)(c) of the Employment Act addresses this kind of scenario, which the respondent appears to have been aware of as it made some notice pay to the grievant,” said Justice Nzei.
