Unilever Kenya Limited v Gathomi
The bottom line
#Kenya's Court of Appeal confirmed employers must give employees the actual documents behind disciplinary charges, but struck out notice pay awarded alongside a justified summary dismissal.
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 respondent's employment was procedurally fair
- 2.Whether the damages awarded by the ELRC, particularly three months' salary in lieu of notice, were properly awarded
Key legal issues
#Procedural fairness of the disciplinary process
The process was unfair: the respondent was not given the charges with particularity, the investigation report, or access to her computer to prepare her defence.
The suspension letter did not disclose the allegation; the show cause letter was broad and unsubstantiated; the respondent's complaints about lack of particulars were not addressed; the investigation report was requested but never supplied even at the hearing. Applying Section 41 and the Postal Corporation case, the Court upheld the ELRC's finding of procedural unfairness.
Award of three months' salary in lieu of notice
The award was contradictory to the unchallenged finding that summary dismissal for gross misconduct was justified, and was set aside.
Since the appellant's justification for summary dismissal was not challenged on appeal, an award of notice pay had no legal basis; notice pay compensates termination without notice, which is incompatible with justified summary dismissal for gross misconduct.
Legal principles established
#- Section 41 of the Employment Act provides the minimum standards of a fair procedure, including explanation of grounds, entitlement to a representative, and hearing of representations.
- An employee facing disciplinary charges is entitled to the documents supporting the charges, including an investigation report, as the essence of fairness even outside a judicial setting.
- An award of salary in lieu of notice is inconsistent with a finding that summary dismissal for gross misconduct was justified, and cannot stand.
Court orders
#- 1.The award of Kshs.498,594.99 being three months' salary in lieu of notice is set aside
- 2.The judgment of the ELRC is otherwise upheld and affirmed
- 3.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Cause No. 124 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (Court of Appeal, Employment and Labour Relations Court Act jurisdiction)
Relief refused
#Appellant's challenge to the finding of procedural unfairness
The Court agreed with the trial Judge that the disciplinary process was unfair because charges and the investigation report were not supplied in advance
Costs
Each party shall bear its own costs of the appeal.
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.
Four elements must thus be discernible for the procedure to pass muster:
even in criminal trials, which are more serious in nature, an accused is entitled to the statements that support the charges laid against him. That is the essence of fairness even outside a judicial setting.
In summary, the appeal partially succeeds to the extent that the award of Kshs.498,594.99 being three months’ salary in lieu of notice is hereby set aside. The judgment of the ELRC is otherwise upheld and armed.
Each party shall bear its own costs of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unilever Kenya Limited v Gathomi", Case Analysis (2024). Civil Appeal E249 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1944/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.