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ELRCPartially AllowedCause 764 of 2012· [2013] KEELRC 517 (KLR)

PITUS OMERI V BOB MORGAN SERVICES LIMITED [2013] KEELRC 517 (KLR)

Industrial Court of Kenya
6 February 2013
LNLinnet Ndolo
1,529 words in judgment
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The bottom line

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A Kenyan court ruled that even where an employee is accused of theft, firing them without a hearing makes the dismissal unfair and compensable.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent security firm as a Response Crew Commander, was summarily dismissed by letter dated 7th October 2011 on accusations of stealing building materials (an exhibit of copper wire or scrap metal) from a client's site, having been suspended on 3rd October 2011. He claimed one month's salary in lieu of notice, unpaid September 2011 salary, compensation for unfair termination and costs. The Respondent maintained that the Claimant sold off recovered stolen items entrusted to him, that he was given an opportunity to make representations before termination, and that he had prior warnings for similar misconduct; it also asserted that his September salary had been paid and his dues prepared in a cheque he failed to collect. The court framed the single issue as whether the termination was undertaken within the law. Relying on Section 41 of the Employment Act and its own precedent in Bartholomew Wanyama and the decision of Rika J in Anne Atieno Sadieda, the court found that the Claimant was never given an opportunity to be heard, the Respondent's own witness confirming this, and held that an employer's investigations cannot replace the employee's right to present their case. The summary dismissal was therefore unfair under Section 45 despite the alleged misconduct. The court awarded 4 months' salary as compensation, one month's salary in lieu of notice, and the disputed September 2011 salary, holding the Respondent to the record-keeping and itemised pay statement duties in Sections 10 and 20 of the Employment Act. The award was computed on the August 2011 payslip, discounting one-off payments, with costs to the Claimant. Judgment was delivered in open court at Nairobi on 6th February 2013 by Linnet Ndolo J.

Key legal issues

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01

Whether the summary dismissal complied with the procedural requirements of Section 41 of the Employment Act

Holding

The dismissal was procedurally unfair because the Claimant was not given an opportunity to be heard before dismissal

Reasoning

Section 41 requires the employer to explain the reasons for termination and hear the employee's representations. RW1 admitted the Claimant was not given an opportunity to defend himself after suspension. The court held that an employer's investigation cannot substitute for the employee's right to present their case.

p. 3
02

Whether the termination was unfair within the meaning of Section 45 of the Employment Act

Holding

The summary dismissal was unfair within the meaning of Section 45

Reasoning

Having failed to follow the Section 41 procedure, the dismissal could not stand as fair even though the Respondent asserted misconduct and prior warnings. Substantive justification does not excuse the absence of procedural fairness, per the authorities the court adopted.

p. 3
03

Whether the Respondent paid the Claimant's salary for September 2011

Holding

The Respondent failed to prove payment; the salary was awarded to the Claimant

Reasoning

Sections 20 and 10 of the Employment Act oblige employers to give itemised pay statements and keep employee records. The Respondent, claiming to have paid the September salary and prepared a cheque, did not discharge this evidential burden, so the court found the salary unpaid.

p. 4

Legal principles established

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  • An employer's internal investigation, however thorough, cannot replace the employee's right to be heard under Section 41 of the Employment Act
  • An employee on suspension has a legitimate expectation to be afforded an opportunity to defend themselves against adverse findings from investigations during the suspension
  • Substantive justification does not displace the employer's duty to afford procedural fairness
  • Under Sections 20 and 10 of the Employment Act the burden of proving payment of salary lies on the employer through itemised pay statements and employee records

Court orders

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  1. 1.4 months' salary as compensation for unfair termination
  2. 2.1 month's salary in lieu of notice
  3. 3.Salary for the month of September 2011
  4. 4.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 45
  • Employment ActSection 20
  • Employment ActSection 10
  • Employment ActSection 42(1) and Section 44(3) or (4) (referred to within quoted Section 41)

Cases cited (2)

  • Bartholomew Wanyama Vs Moses Gitari & 2 Others
    Industrial Court Cause No. 973 of 2011
  • Anne Atieno Sadieda Vs Lavage Laundrette & Drycleaners
    (2011 eKLR)
Jurisdiction invoked
Jurisdiction of the Industrial Court over a claim for unfair termination of employment under the Employment Act

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, "PITUS OMERI V BOB MORGAN SERVICES LIMITED [2013] KEELRC 517 (KLR)", Case Analysis (2013). Cause 764 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/517/eng@2013-02-06

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