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ELRCAllowedCause No 2534 of 2012· [2014] KEELRC 1124 (KLR)

Bottomley Musamali Jumba v Defence Forces Canteen Organization [2014] KEELRC 1124 (KLR)

Industrial Court of Kenya
3 July 2014
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer paid Kshs 844,563 because it denied an employee time to respond to disciplinary charges and ignored its own disciplinary panel's recommendation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1991 and rising to Manager in 2005, was suspended without pay on 14th May 2012 pending investigations into weekend purchases. He appeared before the Respondent's Disciplinary Board on 27th June 2012, having been served with seven charges the same day. The Board recommended demotion and posting out, not dismissal. The Managing Director nonetheless terminated his services with effect from 15th May 2012 for gross misconduct by letter dated 8th August 2012. The Claimant sued, seeking a declaration that the dismissal was unlawful and unfair, notice pay, salary arrears, leave pay and twelve months' compensation; the Respondent counterclaimed for loss of goods worth Kshs. 4,109,975.78 alleging negligence. The Court held the suspension irregular because it exceeded the thirty-day limit in Clause 51(b) of the Respondent's own Terms and Conditions of Service, a contravention admitted by the Respondent's witness. The disciplinary proceedings failed the procedural fairness standard of Section 41 of the Employment Act since the Claimant received seven charges on the day of the hearing. The dismissal was also substantively unfair as the Managing Director departed from the Board's recommendations without explanation, contrary to Section 45(4)(b). The Court awarded Kshs. 844,563 comprising salary for May to July 2012, twelve months' compensation, notice pay, eight days' August salary and leave pay. The Counterclaim was dismissed for want of evidence, with costs and interest awarded to the Claimant.

Key legal issues

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01

Whether the suspension was lawful

Holding

The suspension was irregular because it exceeded the 30-day limit in Clause 51(b) of the Respondent's Terms and Conditions of Service, the case not being with the Police or before a court.

Reasoning

Clause 51(b) prohibited suspensions exceeding thirty consecutive days unless investigations were with the Police or the case pending before a court. The Claimant was suspended without pay for three months, and neither exception applied. The Respondent's own witness admitted in cross-examination that the suspension contravened Clause 51(b). The Court therefore found the Respondent flouted its own Terms and Conditions of Service.

p. 3
02

Whether the dismissal was procedurally fair

Holding

The disciplinary proceedings on 27th June 2012 failed the Section 41 procedural fairness standard because the Claimant was served seven charges the same day he was to appear before the Disciplinary Board.

Reasoning

Section 41 of the Employment Act requires the employer to explain reasons, allow a representative, and hear the employee's explanations. Service of seven charges on the same day as the hearing deprived the employee of sufficient time to prepare a defence. It is irrelevant that the employee did not object or ask for an extension of time. The proceedings therefore did not meet the required procedural fairness standards.

p. 3
03

Whether the dismissal was substantively fair

Holding

The dismissal was unfair because the Managing Director departed from the Disciplinary Board's recommendation of demotion without offering any explanation.

Reasoning

The Disciplinary Board recommended demotion to JG. 8 and posting out, not dismissal. The Managing Director nonetheless terminated the Claimant's services without any explanation for differing from the Board. Applying Section 45(4)(b) of the Employment Act as explained in Ismail Hassan Abdullahi v Kenya Ports Authority, a dismissal contrary to the employer's own disciplinary panel's recommendations without basis is not in accordance with justice and equity.

p. 4
04

Whether the Counterclaim was proved

Holding

The Counterclaim for loss of goods worth Kshs. 4,109,975.78 was dismissed for want of evidence.

Reasoning

Although the Respondent alleged that the Claimant's negligence caused loss of goods worth Kshs. 4,109,975.78, it adduced no evidence to support the Counterclaim at trial. A party asserting a claim bears the burden of proving it; failure to adduce evidence meant the Counterclaim could not stand and was dismissed in its entirety.

p. 5

Legal principles established

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  • An employer who requires an employee to respond to charges on the same day the charges are served does not afford the employee the right to be heard under Section 41 of the Employment Act, whether or not the employee objects.
  • Dismissal contrary to the recommendations of the employer's own disciplinary panel without any basis is not in accordance with justice and equity under Section 45(4)(b) of the Employment Act.

Court orders

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  1. 1.Award of salary for May, June and July 2012 of Kshs. 140,241
  2. 2.Award of 12 months' salary in compensation for unfair termination of Kshs. 560,964
  3. 3.Award of one month's salary in lieu of notice of Kshs. 46,747
  4. 4.Award of salary for 8 days worked in August 2012 of Kshs. 12,466
  5. 5.Award of leave pay (42 days for 2010 and 2011 plus 12 days for 2012) of Kshs. 84,145
  6. 6.Total award of Kshs. 844,563 in favour of the Claimant
  7. 7.Dismissal of the Respondent's Counterclaim in its entirety
  8. 8.Respondent to pay the costs of the case
  9. 9.Interest on the award at court rates from the date of the award until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 12
  • Employment Act, 2007Section 45(4)(b)
  • Employment Act, 2007Section 44(4)(c)

Cases cited (2)

  • Rebbecca Ann Maina and 2 Others Vs Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Ismail Hassan Abdullahi Vs Kenya Ports Authority
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Bottomley Musamali Jumba v Defence Forces Canteen Organization [2014] KEELRC 1124 (KLR)", Case Analysis (2014). Cause No 2534 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1124/eng@2014-07-03

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