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ELRCPartially AllowedCause No 313 of 2013· [2014] KEELRC 984 (KLR)

Mayega Chagara v Raiplywood (Kenya) Limited [2014] KEELRC 984 (KLR)

Employment and Labour Relations Court
9 May 2014
BOByram Ongaya
722 words in judgment
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The bottom line

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A Kenyan court upheld an employee's dismissal for poor performance because the employer followed a fair disciplinary procedure, but still ordered the employer to issue a certificate of service.

What this practically means

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Executive summary

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The claimant, employed by the respondent since 1987, was dismissed on account of careless and poor performance after bundles of polypropylene bags were packed at 600 bags per bundle contrary to an Internal Job Order instructing 500 bags per bundle, while still labelled as containing 500. He filed a memorandum of claim on 16.09.2013 seeking a declaration that his termination was unfair and unlawful, three months' pay in lieu of notice, gratuity, compensation for unlawful termination, and a certificate of service. The respondent, through two witnesses - the claimant's immediate supervisor (RW1) and the Personnel Officer (RW2) - established that a disciplinary process was followed: an internal memorandum of 2.10.2009, a preliminary hearing of 14 employees, a show cause notice, and a disciplinary meeting on 12.10.2009 at which the claimant appeared with a witness and admitted disobeying the packing instructions. The claimant did not testify; his counsel relied on the pleadings and documents. Applying sections 41 and 45(2) of the Employment Act, 2007, the court found the dismissal was neither substantively nor procedurally unfair. All prayers failed except the certificate of service, which the court ordered under section 51, to be delivered by 1.06.2014. The suit was dismissed with the claimant bearing 50% of the costs. Judgment signed, dated and delivered at Nakuru on 9th May 2014 by Byram Ongaya, Judge.

Key legal issues

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01

Fairness of the dismissal

Holding

Dismissal was not unfair; it was grounded on poor performance and misconduct and followed fair procedure

Reasoning

The claimant was responsible for enforcing packing instructions and admitted disobeying the Internal Job Order. He received a show cause notice, attended a disciplinary meeting with a witness, made oral and written submissions, and confessed. Section 45(2) of the Employment Act was thus satisfied as to both reason and procedure.

p. 2
02

Certificate of service

Holding

The claimant was entitled to a certificate of service as a statutory entitlement

Reasoning

Even though the dismissal was upheld, section 51 of the Employment Act entitles an employee to a certificate of service, and the court ordered its delivery by a fixed date.

p. 2

Legal principles established

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  • A termination is not unfair where it relates to poor performance or misconduct and follows a fair procedure with notice and hearing
  • A claimant who does not testify may fail to establish the prayers sought

Court orders

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  1. 1.The claimant's suit is dismissed
  2. 2.The claimant to pay 50% of the costs of the suit
  3. 3.The respondent to deliver to the claimant a certificate of service by 1.06.2014

Authorities

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Legislation

  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 51
Jurisdiction invoked
Employment Act, 2007 (sections 41, 45(2), 51)

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, "Mayega Chagara v Raiplywood (Kenya) Limited [2014] KEELRC 984 (KLR)", Case Analysis (2014). Cause No 313 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/984/eng@2014-05-09

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