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ELRCDismissedCause Number 1646 of 2011· [2014] KEELRC 734 (KLR)

Jaspher Basweti Mairongi v Tusker Mattresses Limited [2014] KEELRC 734 (KLR)

Industrial Court of Kenya
24 January 2014
JRJames Rika
1,904 words in judgment
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The bottom line

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A Kenyan court ruled that deserting your job to dodge a disciplinary hearing can make a dismissal fair, and a criminal acquittal does not guarantee your job back.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Shop Assistant/Cashier, claimed his contract was unfairly and unlawfully terminated on 20th September 2008 after he was suspected of stealing from his Till. He was later charged with stealing by servant in Criminal Case Number 352 of 2009 at Kibera and acquitted on 24th January 2011. He sought unpaid salary, leave, notice pay, twelve months' compensation and other dues totalling about Kshs. 899,878, contending the Respondent was bound by the acquittal. The Respondent maintained the Claimant deserted work when internal auditors investigated a shortfall of Kshs. 298,000 traced to his Till, and counterclaimed Kshs. 242,860 after setting off computed terminal benefits of Kshs. 55,140. The Court found the Claimant deserted on the day auditors were called in, remained underground until his arrest four months later, and thereby made a formal disciplinary process under Sections 41 and 45 of the Employment Act impossible. The Court held that an employer's disciplinary process is distinct from the criminal process, with different standards and objectives, and that the Respondent was not bound by the later acquittal. The dismissal was a reasonable and fair employment decision, and the Claim was rejected in its totality. However, the Counterclaim also failed: the Respondent gave inconsistent figures (Kshs. 298,000 versus Kshs. 287,085) from the same audit and adduced no adequate proof of the exact amount stolen. Both Claim and Counterclaim were dismissed, with costs of both awarded to the Respondent, to be assessed by the Deputy Registrar. Judgment delivered at Nairobi on 24th January 2014 by Rika J.

Key legal issues

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01

Fairness of summary dismissal following employee desertion amid theft investigations

Holding

Dismissal was fair and reasonable; the Claimant deserted on the day auditors were called in and never returned

Reasoning

The Court found the Claimant vanished on 20th September 2008, the date internal auditors were brought in to investigate a shortfall in his Till. He remained underground until arrested four months later. This made a formal disciplinary hearing impossible, excusing the Respondent from Section 41 procedures. Termination one month after absence, with terminal benefits offered, was reasonable and fair.

p. 3
02

Effect of criminal acquittal on employment termination

Holding

The criminal acquittal did not invalidate the employer's disciplinary decision

Reasoning

The disciplinary process is an internal private mechanism while the criminal process is public, with different objectives and standards of proof. The employer need not prove guilt beyond reasonable doubt. Unless the employer linked its decision to the criminal outcome, the acquittal had no bearing on the fairness of the dismissal.

p. 3
03

Proof of the Counterclaim

Holding

Counterclaim failed for lack of adequate evidence

Reasoning

The Respondent pleaded a loss of Kshs. 298,000 but the criminal charge referenced Kshs. 287,085 stolen jointly by two employees. The conflicting figures came from the same internal audit, and no material showed the exact amount stolen by the Claimant. Suspicion, even reasonable and sufficient, does not establish the quantum recoverable in a counterclaim.

p. 3

Legal principles established

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  • An employer's internal disciplinary process is distinct from the criminal process, and an employer is not bound by a subsequent criminal court acquittal
  • Desertion by an employee makes it impossible for the employer to undertake the formal disciplinary process contemplated under Sections 41 and 45 of the Employment Act
  • A counterclaim for stolen funds requires adequate and consistent evidence of the amount stolen, beyond mere suspicion

Court orders

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  1. 1.The Claim is dismissed in its totality
  2. 2.The Counterclaim is dismissed for lack of adequate proof
  3. 3.The Claimant shall pay the Respondent the costs of the Claim and Counterclaim, to be assessed by the Deputy Registrar

Authorities

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Legislation

  • Employment ActSections 41 and 45
Jurisdiction invoked
Industrial Court jurisdiction over employment disputes (issue in dispute: unfair and unlawful termination); Sections 41 and 45 of the Employment Act 2007 applied

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, "Jaspher Basweti Mairongi v Tusker Mattresses Limited [2014] KEELRC 734 (KLR)", Case Analysis (2014). Cause Number 1646 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/734/eng@2014-01-24

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