JOSEPH OCHIENG BARASA V P.C WORLD LIMITED [2013] KEELRC 318 (KLR)
The bottom line
#A Kenyan court ruled an employer must hear an employee's side before firing them, even for suspected theft, or the dismissal is automatically unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was fair
The dismissal was unfair because the Claimant was never given an opportunity to explain himself before the summary dismissal; the Respondent's evidence on the alleged hearing was inadmissible hearsay.
The Respondent's witness was not present at the alleged meeting and his testimony about it was hearsay and therefore inadmissible, leaving the Claimant's testimony unchallenged. The dismissal letter was written and dues calculated a day before the alleged meeting, and no investigation established where the toners were swapped. The least the Respondent could do was seek an explanation, which was not done; the Claimant was condemned unheard, contrary to Sections 41, 43 and 45 of the Employment Act.
Whether the Claimant was responsible for the counterfeit toners
No evidence was adduced establishing that the Claimant swapped the toners; the swap could have occurred before, during or after the delivery.
The Claimant received the toners in a sealed box from the Head of Stores and delivered it 100 metres away within 10 minutes, returning a stamped invoice. The Respondent's witness admitted the Claimant was not the only one who handled the toners. No investigation was carried out to ascertain at what point the original toners were swapped with counterfeits.
Entitlement to reliefs: notice, leave and compensation
The Claimant was awarded one month's salary in lieu of notice, 11 days' accrued leave, and compensation of 6 months' salary for the unfair termination.
Notice pay is provided under Section 49(1)(a) of the Employment Act. The Respondent admitted entitlement to 21 days' leave per year, with 10 days taken and a balance of 11 days. For compensation, the court considered the length of service, salary and value of terminal benefits and found 6 months' salary reasonable rather than the maximum 12 months sought.
Treatment of the authority cited by the Respondent
The authority cited by the Respondent (Johnson B. Wairoma v Securicor) was disregarded because counsel did not demonstrate its relevance and the court found nothing relevant in it.
Counsel for the Respondent cited the case but did not indicate the part or principle relied upon. The court stated it is not the court's role to speculate about what counsel intended to rely on; having read the authority, the court found nothing relevant to the present case.
Legal principles established
#- An employee facing disciplinary action must be given an opportunity to be heard before termination; failure to hear the employee renders the termination ipso facto unfair.
- A party relying on an authority must demonstrate its relevance to the court; the court will not speculate on what principle counsel intended to rely upon.
Court orders
#- 1.A declaration that the summary dismissal/termination of the Claimant's employment was unfair
- 2.Payment of one month's salary in lieu of notice of Kshs.8,000 (stated in the judgment as Dhd.8,000) under Section 49(1)(a) of the Employment Act
- 3.Payment for 11 days accrued leave of Kshs.2,933.30
- 4.Compensation for unfair termination equivalent to 6 months' salary of Kshs.48,000
- 5.Respondent to pay the Claimant's costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court under the Industrial Court Act over employment and labour relations disputes (Employment Act claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOSEPH OCHIENG BARASA V P.C WORLD LIMITED [2013] KEELRC 318 (KLR)", Case Analysis (2013). Memorandum of Claim dated 6th September 2011, filed 8th September 2011 (Industrial Court Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/318/eng@2013-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.