Mark T. Mwangi v Gateway Insurance Company Limited [2013] KEELRC 748 (KLR)

The claimant received a memo outlining seven allegations, responded in writing, and further exchanges followed. The court found the respondent established a good and justifiable belief that the claimant committed gross misconduct, including failure to account for premiums, obstruction of auditors, and insuring his own vehicles without payment, contrary to section 44(4) of the Employment Act.

The court held that the memo exchanges gave the claimant an opportunity to respond in writing to all allegations, and that nothing prevented him from writing down his submissions. The physical hearing requirement in Section 41 is not the only mode; written responses and submissions were adequate forums. The claimant opted to file the claim before exhausting this right.

The claimant admitted allowing agents to remit premiums less commissions contrary to respondent procedure, and could not explain issuing certificates without payment, including for his own two private vehicles. This negligence formed the basis of the summary dismissal, and the respondent proved the counter-claim.

The employer must demonstrate that it encouraged an employee to take leave within the statutory period. The respondent did not show any effort to have someone take over the claimant's functions to allow him to go on leave, so his labour given instead of leave should be compensated.