Nahashon Wachira v United Millers [2013] KEELRC 584 (KLR)
The bottom line
#A Kenyan court confirmed an employer's dismissal was fair, but cut the punishment because no goods were actually stolen, awarding only notice pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the Claimant was justifiable
Yes - the Claimant colluded in the attempted theft and there were reasonable and sufficient grounds for dismissal
The court found attempted theft by loading 100 excess cartons was not in dispute and the Claimant was present during loading. RW3 and RW4 testified about the Claimant's suspicious behaviour and that he and Razak promised committee members Shs.5,000 each. The Claimant could not explain why he came to work on a Sunday only to seek permission, or the discrepancy between his stated departure time (9.00 a.m.) and the gate record showing he left after 10.00 a.m. The court adopted the disciplinary committee's findings.
Whether fair procedure was applied
Yes - the disciplinary process complied with Sections 41, 43 and 45 of the Employment Act
The Claimant was given a hearing notice and appeared before a disciplinary committee which considered the case in detail. The court found the procedure met the statutory requirements of Section 41 (notice and hearing), Section 43 (proof of reasons) and Section 45 (fairness) of the Employment Act, and that the termination was fair and justified.
Whether the Claimant was entitled to notice, compensation and severance pay
Only notice pay awarded; compensation and severance refused
Because summary dismissal was found too harsh given that no goods were lost, the court reduced it to normal termination and awarded one month's salary in lieu of notice (Shs.27,824). Having found no unfair dismissal, compensation was unavailable; severance pay was unavailable as the Claimant was not declared redundant.
Legal principles established
#- A summary dismissal may be found justified in substance yet too harsh in consequence where no loss is suffered, warranting reduction to normal termination with notice pay
- An employer meets the requirements of Sections 41, 43 and 45 of the Employment Act where a disciplinary hearing is conducted and there are reasonable and sufficient grounds for dismissal
Court orders
#- 1.Summary dismissal reduced to normal termination
- 2.Claimant awarded one month's salary in lieu of notice in the sum of Shs.27,824.00
- 3.Claims for compensation and severance pay dismissed
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (Cause No. 79 of 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lynette Pereira v Kenya Motor Sports Federation Limited [2017] KEELRC 1706 (KLR)[2017] KEELRC 1706 (KLR)23 Feb 2017
Cite this brief
#Cite this brief
Caselaw, "Nahashon Wachira v United Millers [2013] KEELRC 584 (KLR)", Case Analysis (2013). Cause No. 79 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/584/eng@2013-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.