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ELRCPartially AllowedMemorandum of Claim dated 6th September 2011, filed 8th September 2011 (Industrial Court Cause)· [2013] KEELRC 318 (KLR)

JOSEPH OCHIENG BARASA V P.C WORLD LIMITED [2013] KEELRC 318 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
30 April 2013
1,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed as a Rider by the Respondent from 2nd June 2010, was summarily dismissed on grounds that he delivered counterfeit toners to a client, JHPIEGO, on a delivery made in May 2011. He sued for a declaration that the termination was unlawful and unfair, terminal dues, compensatory damages, interest and costs. The Respondent admitted the employment and dismissal, alleging gross misconduct, and stated it offset the Claimant's calculated terminal benefits against the cost of replacing the toners. The court framed two issues: whether the summary dismissal was fair and whether the Claimant was entitled to the reliefs sought. The Respondent's sole witness, an Accountant, was not present at the alleged disciplinary meeting, making his account of it hearsay and inadmissible; the Claimant's testimony therefore stood unchallenged. The court found the dismissal letter and terminal dues calculation predated the alleged hearing, that no investigation established where the toners were swapped, and that the Claimant was condemned unheard. Following Donald Odeke v Fidelity Security Ltd, the court held the Respondent failed to observe Sections 41, 43 and 45 of the Employment Act and the dismissal was unfair. The authority cited by the Respondent was rejected for want of demonstrated relevance. The court awarded notice pay of Kshs.8,000, 11 days' leave at Kshs.2,933.30, and compensation of six months' salary at Kshs.48,000, with costs to the Claimant. The claim partially succeeded, the 12-month maximum compensation sought being reduced to six months.

Key legal issues

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01

Whether the summary dismissal was fair

Holding

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.

Reasoning

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.

p. 2
02

Whether the Claimant was responsible for the counterfeit toners

Holding

No evidence was adduced establishing that the Claimant swapped the toners; the swap could have occurred before, during or after the delivery.

Reasoning

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.

p. 2
03

Entitlement to reliefs: notice, leave and compensation

Holding

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.

Reasoning

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.

p. 3
04

Treatment of the authority cited by the Respondent

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.A declaration that the summary dismissal/termination of the Claimant's employment was unfair
  2. 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. 3.Payment for 11 days accrued leave of Kshs.2,933.30
  4. 4.Compensation for unfair termination equivalent to 6 months' salary of Kshs.48,000
  5. 5.Respondent to pay the Claimant's costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49(1)(a)

Cases cited (2)

  • JOHNSON B. WAIROMA –VS- SECURICOR KENYA LTD
    Nairobi HCCC No. 2838 of 1996
  • DONALD ODEKE –VS- FIDELITY SECURITY LIMITED
    Industrial Court Cause No. 1998 of 2011
Jurisdiction invoked
Original jurisdiction of the Industrial Court under the Industrial Court Act over employment and labour relations disputes (Employment Act claims)

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, "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.