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ELRCDismissedCause No. 53 of 2006· [2007] KEELRC 5 (KLR)

KENYA GUARDS & ALLIED WORKERS’ UNION v FACTORY GUARDS CO. LTD [2007] KEELRC 5 (KLR)

Industrial Court of Kenya
21 March 2007
CCCharles P. ChemmuttutJKJ.M. KilonzoAWA.O. Wafula
2,119 words in judgment
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The bottom line

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Kenya's Industrial Court upheld a driver's summary dismissal because hiding a company-vehicle accident exposed his employer to criminal prosecution.

What this practically means

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Executive summary

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This trade dispute was referred to the Industrial Court by the Minister for Labour under Section 8 of the Trade Disputes Act, Cap. 234, concerning the summary dismissal of grievant Joseph M. Mega, a driver employed by the Respondent Company from September 1997. The grievant was involved in a road traffic accident on 27 October 2003 while driving company vehicle KAK 064T and failed to report it to the Company or the police as required by Section 73(3) of the Traffic Act, Cap. 403. The accident came to light when the owner of the damaged vehicle sought repayment of repairs. The grievant, who had two valid warnings on his file, was summarily dismissed on 28 October 2003 under Section 17(c) and (g) of the Employment Act, Cap. 226. The Union claimed terminal dues of Kshs. 131,699/=, arguing the dismissal breached natural justice and the warning procedure. The Company argued the concealment exposed it to prosecution, uninsured damages and vicarious liability. The Court held that concealment of the offence, exposing the Company's management to possible criminal prosecution, amounted to misconduct within the meaning of Section 17, applying Pearce v. Foster. Since the grievant admitted his guilt, there was no denial of natural justice. The Court dismissed the Union's demand in its entirety on 21 March 2007, with no costs order recorded.

Key legal issues

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01

Whether concealment of a road traffic accident amounted to misconduct justifying summary dismissal

Holding

The grievant's concealment of the offence, which would have occasioned criminal prosecution of the Company's management, amounted to misconduct justifying the summary dismissal

Reasoning

The grievant was involved in a road accident driving a company vehicle and failed to report it to the Company or the police as required by Section 73(3) of the Traffic Act. Section 75 of that Act made the concealment punishable. The Court, applying Pearce v. Foster, held that conduct prejudicial to the employer's interests - including exposure to criminal prosecution - constitutes misconduct justifying immediate dismissal, and Section 17 of the Employment Act is enumerative rather than exhaustive.

p. 4
02

Whether natural justice was violated by failure to give the grievant a hearing before dismissal

Holding

No violation of natural justice because the grievant admitted his guilt

Reasoning

The Union contended the grievant should have been informed of the alleged misconduct and given an opportunity to explain. The Court found that the grievant admitted liability after questioning and conceded the offence, so no denial of natural justice arose. The warning procedure argument also failed because the dismissal was for concealment exposing the Company to prosecution and damages.

p. 4

Legal principles established

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  • Conduct of an employee which may lead to criminal prosecution of his employer amounts to misconduct justifying summary dismissal
  • Where an employee admits his guilt, there is no denial of the principles of natural justice in summary dismissal

Court orders

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  1. 1.The demand/claim on behalf of the grievant is rejected in its entirety
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya - reference by the Minister for Labour

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA GUARDS & ALLIED WORKERS’ UNION v FACTORY GUARDS CO. LTD [2007] KEELRC 5 (KLR)", Case Analysis (2007). Cause No. 53 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/5/eng@2007-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.