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ELRCPartially AllowedCause No. 2280 of 2012· [2014] KEELRC 1420 (KLR)

David Wahome v Schenker Limited [2014] KEELRC 1420 (KLR)

Industrial Court of Kenya at Nairobi
26 November 2014
2,601 words in judgment
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The bottom line

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A Kenyan court cut a summary dismissal to normal termination because of 30 years of loyal service, but refused compensation since the employee skipped his own disciplinary hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent clearing and forwarding company since 1982 and dismissed as a Warehouse Supervisor on 31st August 2012 by way of summary dismissal, claimed a declaration that his termination was unlawful, terminal benefits of Kshs.1,173,505.90, twelve months' gross salary as compensation, a certificate of service, costs and interest. The respondent maintained the dismissal was lawful and procedural. The court merged the parties' issues into two questions: whether the summary dismissal was unfair, and whether the claimant was entitled to the prayers sought. The court found the claimant offloaded a consignment without a packing list, contrary to standard operating procedure, and was given a show cause letter, a warning letter and an invitation to a disciplinary hearing, all communicated by email, which the court found to be an accepted mode of workplace communication. The claimant refused to accept the warning letter, ignored the second show cause letter and skipped the hearing. Following Justice Ndolo in Jackson Butiya v. Eastern Produce Kenya Ltd, the court held the respondent had valid reason to dismiss and that the claimant, having squandered every opportunity to participate in the disciplinary process, could not complain of being unheard. However, considering his 30 years of service and clean disciplinary record, the court reduced the summary dismissal to normal termination. The respondent was ordered to pay one month's salary in lieu of notice (Kshs.40,511/=), leave earned but not taken (5 days), and to issue a certificate of service. Compensation and service pay were refused, the latter because the claimant was a member of NSSF and the respondent's retirement benefits scheme. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the summary dismissal of the claimant was unfair

Holding

The dismissal was not unfair: there was a valid reason (violation of cargo handling procedure and refusal to accept a warning letter) and the claimant was afforded a fair process but refused to participate

Reasoning

The claimant breached the respondent's standard operating procedure by offloading a consignment without a packing list. He was given a show cause letter and invited to a disciplinary hearing through email, an accepted mode of communication at the workplace, but he declined to accept the warning letter, ignored the show cause letter and skipped the hearing. Following Justice Ndolo in Jackson Butiya, an employee who squanders the internal grievance mechanism cannot claim he was not heard. The court nonetheless found dismissal too harsh given 30 years' service and a clean record, and reduced it to normal termination.

p. 5
02

Whether the claimant was entitled to the prayers sought (terminal benefits, compensation, certificate of service)

Holding

Only pay in lieu of notice, earned untaken leave of 5 days and a certificate of service awarded; compensation and service pay refused

Reasoning

Having found valid reason for dismissal and that the claimant refused to avail himself of the disciplinary process, the court held he was not entitled to compensation. Service pay was unavailable because the claimant was a member of NSSF and the respondent's retirement benefits scheme. However, the court, exercising discretion in light of his long service and clean record, reduced the summary dismissal to normal termination, entitling him to one month's notice pay and accrued untaken leave days, plus a certificate of service under Section 51 of the Employment Act.

p. 5

Legal principles established

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  • An employee who refuses to participate in the employer's internal grievance and disciplinary process cannot later claim he was not heard; the court only ensures such processes are undertaken within the law
  • Email is an accepted mode of workplace communication capable of delivering notices such as warning letters, show cause letters and hearing invitations
  • A court may, in its discretion, reduce a summary dismissal to normal termination on account of long service and a clean disciplinary record

Court orders

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  1. 1.Summary dismissal reduced to normal termination
  2. 2.Respondent to pay pay in lieu of notice of Kshs.40,511/=
  3. 3.Respondent to pay leave earned but not taken of 5 days
  4. 4.Respondent to issue certificate of service
  5. 5.The rest of the claim is dismissed
  6. 6.Each party shall bear their costs
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court of Kenya (Cause No. 2280 of 2012)

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, "David Wahome v Schenker Limited [2014] KEELRC 1420 (KLR)", Case Analysis (2014). Cause No. 2280 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1420/eng@2014-11-26

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