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ELRCDismissedCause filed 17 October 2013 (memorandum of claim; ELRC, Nakuru)· [2015] KEELRC 260 (KLR)

Kennedy Esadia Luvisi v Rai Ply Wood (Kenya) Ltd [2015] KEELRC 260 (KLR)

Employment and Labour Relations Court
13 November 2015
RSRadido Stephen
974 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker fired for possessing his employer's petrol lost his case because the company followed a fair process and proved its reasons.

What this practically means

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Executive summary

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The claimant, employed as a mechanical fitter from 1 February 2001, was dismissed on 22 August 2013 after being found with 2 litres of super petrol in a plastic container hidden in a jacket at the respondent's factory. He sued for unfair/unlawful termination claiming Kshs 520,530 in terminal dues and compensation. The court framed two issues: whether the dismissal was unfair, and appropriate remedies. On procedural fairness under section 41 of the Employment Act, 2007, the court held that the essential ingredients are informing the employee of the allegations and affording an opportunity to respond; the process may be conducted by correspondence, oral hearing or both, and the employer need not hold a mini-court. The claimant received a show cause notice, responded in writing and appeared at an oral hearing, so the respondent substantially complied. On substantive fairness, the employer had to prove the reason for dismissal and its validity. The claimant's own statement of 19 August 2013 admitted being found with the petrol without a gate pass. Given mandatory entry searches, the court inferred the petrol was taken from within the premises and belonged to the respondent. The claimant could not account for it, satisfying section 44(4)(g) as grounds for summary dismissal. The court found the dismissal fair both procedurally and substantively and dismissed the memorandum of claim with costs to the respondent.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

The Claimant was informed of the charges by show cause, responded in writing, and appeared at an oral hearing, so the employer substantially complied with section 41.

Reasoning

Section 41 requires that an employee be informed of the allegations and given an opportunity to respond, possibly accompanied by a colleague or union representative. The process may be by correspondence, oral hearing, or both; the employer need not hold a mini-court. Here the claimant received a show cause notice, responded in writing on 21 August 2013, and attended an oral hearing the same day, after which the employer decided to dismiss. This was substantial compliance.

p. 2
02

Substantive fairness under sections 43, 44 and 45 of the Employment Act

Holding

The reason for dismissal - being found with the employer's petrol which he could not account for - was valid and fair, justifying summary dismissal under section 44(4)(g).

Reasoning

The employer bore the burden of proving the reason for dismissal and its validity. The claimant admitted in his statement of 19 August 2013 that he was found with 2 litres of super petrol without a gate pass. Given mandatory entry and exit searches, it was more probable that the petrol was obtained within the premises and belonged to the respondent. The claimant's inability to account for the respondent's property grounded summary dismissal under section 44(4)(g).

p. 2

Legal principles established

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  • The essential ingredients of procedural fairness under section 41 of the Employment Act are that the employee be informed of the allegations and afforded an opportunity to respond, and may be accompanied by a colleague or union shop floor representative.
  • The procedural fairness contemplated by section 41 may be conducted through correspondence, face to face hearing or a combination of both, and the employer need not hold a mini-court.
  • An employer must prove the reasons for dismissal and that they are valid and fair; an employee found with the employer's property which he cannot account for gives sufficient grounds for summary dismissal under section 44(4)(g).

Court orders

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  1. 1.Dismissal of the Memorandum of Claim filed in Court on 17 October 2013 with costs to the Respondent

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 45(4)
  • Employment Act, 2007section 44(4)(g)

Cases cited (1)

  • Kenya Revenue Authority v Menginya Salim Murgani
    (2010) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Cause filed under the court's employment jurisdiction)

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, "Kennedy Esadia Luvisi v Rai Ply Wood (Kenya) Ltd [2015] KEELRC 260 (KLR)", Case Analysis (2015). Cause filed 17 October 2013 (memorandum of claim; ELRC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/260/eng@2015-11-13

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