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ELRCPartially AllowedCause 269 of 2011· [2012] KEELRC 138 (KLR)

SAMUEL KIRAGO V KUEHNE+NAGEL LTD [2012] KEELRC 138 (KLR)

Industrial Court of Kenya
9 October 2012
MOM. Onyango
1,666 words in judgment
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The bottom line

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Even when an employee's misconduct justifies dismissal, Kenyan employers must still hold a fair hearing or the dismissal becomes procedurally unfair.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as fuel and lubricants supervisor, was summarily dismissed on 9th November 2010 after a reconciliation revealed a shortfall of thousands of litres of fuel valued at over Kshs.600,000, which he failed to report. He claimed one month's notice, terminal dues, benefits, leave days and damages, alleging unfair and wrongful dismissal. The Court found the dismissal substantively justified: the Claimant's failure to report the loss and his decision to conduct personal investigations outside his job description constituted negligent performance warranting disciplinary action. However, the dismissal was procedurally unfair under Section 41 of the Employment Act, as the Respondent never explained the reasons for dismissal, denied the Claimant a companion, and held no hearing at which representations could be made. On remedies, the Court held that although unfairly dismissed, the Claimant's own culpable conduct limited relief: the dismissal was reduced to normal termination entitling him to one month's salary in lieu of notice, but no finding was made on the amount since the salary was neither pleaded nor testified to and could not be introduced through written submissions. The claims for leave days, severance benefits and general damages of Kshs.2,000,000 all failed for want of proof and statutory basis, severance being an entitlement only on redundancy under Section 40. There were no orders for costs.

Key legal issues

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01

Whether the dismissal was substantively justified

Holding

The Claimant's failure to report a fuel loss exceeding Kshs.600,000 amounted to negligent performance for which disciplinary action was warranted

Reasoning

The Claimant, a fuel supervisor, returned from leave to find a fuel variance and instead of reporting to his superiors embarked on his own investigation outside his job description, delaying reporting for about two weeks. The Court agreed with the employer that this was negligent performance justifying disciplinary action, so the substantive reason for dismissal was valid.

p. 2
02

Whether the dismissal was procedurally fair under Section 41

Holding

The procedure was unfair: the Respondent did not explain the reasons, did not allow the Claimant a companion, and did not hear representations - there was no hearing at all

Reasoning

Section 41 requires an employer to explain reasons for contemplated termination in a language the employee understands, allow another employee or union representative to be present, and hear representations before termination or summary dismissal. None of these steps was taken against the Claimant; the Court found the process wholly non-compliant and therefore unfair.

p. 3
03

Remedies for unfair dismissal

Holding

Although unfairly dismissed, the Claimant was not entitled to the remedies sought: notice pay unquantified for want of pleading, no leave days due, no severance absent redundancy, and no general damages available absent a statutory basis and evidence

Reasoning

The Court treated the unfair dismissal as reducible to normal termination, entitling the Claimant only to notice pay, but since the salary was not pleaded or proved it made no finding on the amount. Severance pay is reserved for redundancy under Section 40, leave was exhausted per DOC 15, and general damages had no statutory foundation, Section 49 compensation having neither been pleaded nor supported by evidence of salary.

p. 3

Legal principles established

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  • For a termination to be lawful and justifiable, an employer must comply with Section 45 of the Employment Act, including the procedural requirements of Section 41
  • An employer who fails to explain reasons for contemplated termination, deny the employee a companion at the hearing, or hear representations, violates Section 41 and the dismissal is unfair
  • Facts crucial to a claim, such as salary, must be pleaded or given in testimony and cannot be introduced through written submissions

Court orders

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  1. 1.A declaration in effect that the Claimant was unfairly dismissed, with the dismissal reduced to normal termination entitling him to one month's salary in lieu of notice
  2. 2.No finding made on the amount of one month's salary in lieu of notice as none was pleaded or proved
  3. 3.Dismissal of the claim for leave days
  4. 4.Dismissal of the claim for severance pay
  5. 5.Dismissal of the claim for general damages
  6. 6.No orders for costs

Authorities

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Legislation

  • Employment ActSection 45 including 45(5)
  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 49 including 49(4)
  • Employment ActSection 50
  • Employment ActSection 51
  • Employment ActSection 40
  • Industrial Court Act 2011Section 12(3)(c) and (d)
Jurisdiction invoked
Section 12 of the Industrial Court Act 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "SAMUEL KIRAGO V KUEHNE+NAGEL LTD [2012] KEELRC 138 (KLR)", Case Analysis (2012). Cause 269 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/138/eng@2012-10-09

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