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ELRCPartially AllowedCause No. 71 of 2012· [2015] KEELRC 415 (KLR)

Maurice Ngode Mito v Summit Textiles (E.A) Limited [2015] KEELRC 415 (KLR)

Employment and Labour Relations Court
14 October 2015
HWHellen S. Wasilwa
861 words in judgment
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The bottom line

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A Kenyan court ruled an employee was unfairly fired because his employer never gave him a hearing before dismissal, awarding him over Kshs 153,000.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Machine Operator, claimed his employment was unlawfully terminated on 15 March 2010 after a machine he was operating ran out of fuel. He sought payment for 15 years of service, overtime of 72 hours, notice pay and other terminal dues. The Respondent admitted the employment relationship (dating it from December 1994), contended that the Claimant used waste oil in the machine, that he was summarily dismissed but this was converted to a normal termination, and that his terminal dues of Kshs 71,278 were computed with Kshs 65,509 deducted for PAYE and a Co-op loan, the balance deposited in his account. The court framed two issues: whether there were valid reasons for the termination and whether due process was followed. It held that use of waste oil could warrant discipline but was not a valid reason for summary dismissal under section 44 of the Employment Act 2007, and that the Respondent failed to subject the Claimant to the due process mandated by section 41, which requires explanation of reasons and hearing of representations before termination. The termination was therefore unfair under section 45. The court awarded one month's salary in lieu of notice (Kshs 11,831) and 12 months' salary as compensation for unlawful termination (Kshs 141,927), totalling Kshs 153,803 less statutory deductions, plus costs. The other claimed heads were not awarded. Judgment was read in open court on 14 October 2015.

Key legal issues

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01

Validity of the reason for termination

Holding

The alleged use of waste oil was not a valid reason for summary dismissal under section 44 of the Employment Act 2007

Reasoning

The Respondent alleged the Claimant used waste oil, causing the machine to stop, while the Claimant said the machine ran out of fuel. The court held that even if the allegation were true, it could only ground a disciplinary process, not summary dismissal. The Respondent also failed to prove a valid and fair reason as required under section 45(2) of the Employment Act.

p. 2
02

Fair procedure before termination

Holding

The Respondent failed to follow the mandatory procedure in section 41 of the Employment Act 2007, rendering the termination unfair under section 45

Reasoning

Section 41 requires an employer to explain the reasons for contemplated termination to the employee in a language he understands and to hear and consider representations, with a colleague or union representative present. The Respondent simply barred the Claimant from the premises and issued a termination letter. No hearing or explanation was given. The termination was therefore procedurally unfair and the court found for the Claimant.

p. 2

Legal principles established

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  • Use of waste oil in a machine may warrant disciplinary action but is not a valid reason for summary dismissal without due process under sections 41 and 44 of the Employment Act
  • An employer must subject an employee to due process under section 41 of the Employment Act before termination; failure renders the termination unfair under section 45

Court orders

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  1. 1.Payment of 1 month's salary in lieu of notice = Kshs 11,831
  2. 2.Payment of 12 months' salary compensation for unlawful termination = 11,831 x 12 = Kshs 141,927
  3. 3.Total award of Kshs 153,803 less statutory deductions
  4. 4.Respondent to pay costs of the case

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 45(1) and (2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act 2007)

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, "Maurice Ngode Mito v Summit Textiles (E.A) Limited [2015] KEELRC 415 (KLR)", Case Analysis (2015). Cause No. 71 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/415/eng@2015-10-14

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