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ELRCDismissedCause No 1176 of 2013· [2014] KEELRC 111 (KLR)

Agnes Jebichii Limo v Kenya Pipeline Company Limited [2014] KEELRC 111 (KLR)

Employment and Labour Relations Court
21 November 2014
MNMathews N. Nduma
2,799 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 upheld a summary dismissal of an employee who abused and threatened her supervisor, awarding only basic dues.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as support staff from 2nd January 1996, was summarily dismissed on 14th January 2013 with effect from 15th January 2013 for gross misconduct - use of abusive language against her supervisor, Mrs Nancy Rono, and threatening to harm her in connection with a missing procurement file. She sued seeking reinstatement or, alternatively, terminal benefits exceeding Kshs.18 million, including gratuity for seventeen years, pay in lieu of notice, twelve months' compensation for unfair termination and general damages, plus costs and a certificate of service. She also claimed the replacement value of household property allegedly stolen during her eviction from the company house. The Respondent justified the dismissal, alleging prior similar misconduct. The Court heard five Respondent witnesses and found their testimony credible, establishing that the Claimant repeatedly insulted her supervisor before colleagues. The Claimant's denial was found inconsistent and untruthful. The Court held the conduct constituted a dismissible offence under Section 44(4)(d) of the Employment Act read with Clause 41 of the CBA; that a show-cause notice, response, and disciplinary hearing with a union representative satisfied fair procedure under Sections 45(1) and 45(2)(a) and (c); and that the Claimant failed to discharge her burden under Section 47(5). The claim for stolen property was disbelieved and was not pleaded in the memorandum of claim. The suit failed in its entirety except for salary for days worked in January 2013, fourteen days' leave pay, a certificate of service and pension dues, to be computed and filed by the Respondent within thirty days. Considering her long service, each party was ordered to bear their own costs.

Key legal issues

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01

Validity of the reason for summary dismissal

Holding

The dismissal was for a valid reason - proven gross misconduct in using abusive language and threatening to harm her supervisor

Reasoning

The Court found the evidence of RW2-RW5 credible and consistent, demonstrating the Claimant abused and insulted her supervisor repeatedly before colleagues. The Claimant's sworn denial was found inconsistent and untruthful. The conduct fell within Section 44(4)(d) of the Employment Act and Clause 41 of the CBA as a dismissible offence.

p. 6
02

Fairness of the disciplinary procedure

Holding

The procedure was fair - show cause notice issued and responded to, and a disciplinary hearing held with a union representative present

Reasoning

RW2-RW5 confirmed notice to show cause was given and responded to. The Claimant attended the disciplinary committee with a union representative, gave her testimony and witnesses were heard. Though the process took months, the Court found it handled fairly.

p. 7
03

Burden of proof under Section 47(5)

Holding

The Claimant failed to discharge her burden of proving wrongful dismissal; the Respondent discharged its onus

Reasoning

Section 47(5) places the burden of proving wrongful dismissal on the employee. The Court found the Claimant had not discharged that onus, while the Respondent demonstrated both a valid reason and a fair procedure under Sections 45(1) and 45(2)(a) and (c).

p. 6
04

Claim for stolen/destroyed household property

Holding

Rejected - the eviction was orderly and lawful and the claim was not properly pleaded

Reasoning

RW1 testified the property was safely removed and delivered to a colleague/relative of the Claimant, and the Court believed him. The Court disbelieved the Claimant's allegation and further noted the memorandum of claim was never amended to include particulars of destruction or theft.

p. 6

Legal principles established

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  • An employee who uses abusive language against a supervisor and threatens harm commits gross misconduct justifying summary dismissal under Section 44(4)(d) of the Employment Act
  • The burden of proving wrongful dismissal lies on the employee under Section 47(5) of the Employment Act, and an employer showing a valid reason and fair procedure discharges its onus
  • A show-cause notice and a disciplinary hearing at which the employee is accompanied by a union representative of choice satisfies the fair procedure requirement, even if the process took some months

Court orders

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  1. 1.Claimant to be paid salary for the days worked from 1st to 15th January 2013
  2. 2.Claimant to be paid for fourteen (14) days in lieu of leave
  3. 3.Provision of a certificate of service to the Claimant
  4. 4.Payment of pension dues as per the terms and conditions of service
  5. 5.The Respondent to compute and file the award within thirty (30) days from the date of judgment
  6. 6.Each party to meet their own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(d) and (e)
  • Employment Act, 2007Section 45(1) and 45(2)(a) and (c)
  • Employment Act, 2007Section 47(5)
  • Collective Bargaining Agreement (CBA) operational at the timeClause 41 (also referred to as Section 40(d) of the CBA in the dismissal letter)
Jurisdiction invoked
Employment and Labour Relations Court first-instance jurisdiction (Employment Act, 2007 and the statement of claim filed 25th July 2013); specific enabling provision not quoted in the judgment

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, "Agnes Jebichii Limo v Kenya Pipeline Company Limited [2014] KEELRC 111 (KLR)", Case Analysis (2014). Cause No 1176 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/111/eng@2014-11-21

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