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ELRCDismissedCause No. 276 of 2011· [2014] KEELRC 602 (KLR)

Elizabeth Wangare Gathoni & 2 others v Andrew Nightngale and Kembu E.A. Ltd [2014] KEELRC 602 (KLR)

Industrial Court of Kenya
4 March 2014
2,985 words in judgment
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The bottom line

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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

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Executive summary

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Three former employees of Kembu E.A. Ltd claimed unfair termination and underpayment before the Industrial Court at Nairobi, seeking notice pay, unexpired contract balances, 36 months' housing allowance arrears, 12 months' gross salary compensation under section 49C of the Employment Act, 2007, certificates of service and costs. The claimants alleged their permanent terms were converted to fixed-term contracts after the 2007/2008 post-election downturn and that their services were ended early without hearings. The respondent maintained the 1st claimant was summarily dismissed for abusive language, incitement and misuse of the laundry; the 2nd for absconding duty and derogatory language; and that the 3rd claimant, a Manager, resigned voluntarily by a 'Notice to leave company' letter dated 18th November 2009, with all dues paid and recommendation letters issued. The matter proceeded by written submissions, with none filed by the respondents. The court, applying sections 44 and 45 of the Employment Act, 2007, held the summary dismissals lawful because the misconduct fell within section 44(a), (d), (e) and (g) and the claimants did not rebut the respondent's documented evidence. It found no termination for the 3rd claimant, only an agreed, amicable resignation. On the balance of probabilities the respondent's case prevailed; the claimants were disentitled to all relief and the suit was dismissed with costs to the respondents.

Key legal issues

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01

Whether the summary dismissal of the 1st and 2nd claimants was wrongful, unfair and unlawful

Holding

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

Reasoning

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.

p. 4
02

Whether there was a termination of employment for the 3rd claimant

Holding

There was no termination; the 3rd claimant resigned voluntarily by letter dated 18th November, 2009 and there was an amicable parting

Reasoning

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.

p. 7
03

Whether the claimants are entitled to the relief sought

Holding

They are not entitled to any relief

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The claim is dismissed with costs to the respondents

Authorities

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Legislation

  • Employment ActSection 44
  • Employment ActSection 44(a), (d), (e) and (g)
  • Employment ActSection 45
  • Employment ActSection 49C
  • Employment ActSection 51
  • Employment ActSections 45(2)(b) and 45(5)(b)
Jurisdiction invoked
Jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.