Elizabeth Wangare Gathoni & 2 others v Andrew Nightngale and Kembu E.A. Ltd [2014] KEELRC 602 (KLR)
The bottom line
#Kenya's Industrial Court dismissed three employees' unfair termination claims because they produced no evidence to challenge their employer's well-documented misconduct and resignation records.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the 1st and 2nd claimants was wrongful, unfair and unlawful
The dismissal was lawful; the conduct complained of fell within section 44(a), (d), (e) and (g) of the Employment Act, 2007 as gross misconduct
The 1st claimant was dismissed for abusive language, incitement and misuse of the employer's laundry, the 2nd for absconding duty and derogatory language, both within section 44 grounds. Neither claimant denied or rebutted the allegations or the security report. The court found the legal parameters for termination apt and fair, satisfying section 45.
Whether there was a termination of employment for the 3rd claimant
There was no termination; the 3rd claimant resigned voluntarily by letter dated 18th November, 2009 and there was an amicable parting
The respondent produced a 'Notice to leave company' letter showing voluntary exit, acknowledgment, payment of terminal dues including forgiveness of an Ksh.8,000 loan, recommendation letters and a CV. The 3rd claimant's denial was an afterthought unsupported by evidence, so on the balance of probabilities the respondent's version prevailed.
Whether the claimants are entitled to the relief sought
They are not entitled to any relief
Since termination was fair for the 1st and 2nd claimants and there was no termination for the 3rd, the foundations of all claims - notice pay, contract balance, housing allowance arrears and section 49 compensation - fell away, together with the claim for certificates of service.
Legal principles established
#- An employer who establishes gross misconduct within section 44 of the Employment Act, 2007 and a fair process effects a lawful summary dismissal
- A party alleging unfair termination must adduce evidence to rebut the employer's documented account; on a balance of probabilities a well-documented employer case prevails
- A voluntary resignation agreed inter partes with payment of terminal dues does not constitute termination of employment for purposes of a claim
Court orders
#- 1.The claim is dismissed with costs to the respondents
- Jurisdiction invoked
- Jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes
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.
- Macmillian Njage Nciema v George Mwangi Gichimo [2022] KEELRC 469 (KLR)[2022] KEELRC 469 (KLR)17 Mar 2022
Cite this brief
#Cite this brief
Caselaw, "Elizabeth Wangare Gathoni & 2 others v Andrew Nightngale and Kembu E.A. Ltd [2014] KEELRC 602 (KLR)", Case Analysis (2014). Cause No. 276 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/602/eng@2014-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.