William Nyamongo v Roy Parcel Services Ltd [2015] KEELRC 584 (KLR)

Employment and Labour Relations Court

10 July 2015

ANAbuodha J. N.

1,561 words in judgment

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The bottom line

A Kenyan court ruled a driver's dismissal was justified in substance but unfair because he was never given a hearing, awarding only one month's salary.

What this practically means

Executive summary

The claimant, employed by the respondent as a driver from 2006, was summarily dismissed by letter dated 4th September 2012 following the theft of a consignment from a vehicle he was driving to Kisumu in July 2012. He claimed wrongful termination without notice, a show cause letter or disciplinary hearing, and sought Kshs.385,940/70. The respondent maintained that the dismissal was for gross negligence in failing to lock the truck, and counterclaimed Kshs.759,349/54 for the lost consignment, misappropriated cash and siphoned diesel. The Court found that while the claimant had a history of disciplinary issues sufficient to justify dismissal in substance, no evidence showed he was accorded a hearing before dismissal, contrary to section 41 of the Employment Act; the dismissal was therefore substantively justified but procedurally unfair. The Court awarded nominal compensation of one month's salary plus salary for the suspension period, totalling Kshs.30,505/=. Claims for leave and house allowance were disallowed as reasonably controverted. The counterclaim failed because the respondent produced only third-party demands and no proof of actual payment, and goods are generally transported at owner's risk. There was no order as to costs. Judgment was delivered at Nairobi on 10th July 2015 by Abuodha J. N.

Key legal issues

Procedural fairness in summary dismissal

Holding

Dismissal was justified in reason but unfair for want of fair procedure, as no evidence showed the claimant was accorded a hearing prior to dismissal.

Reasoning

The disciplinary team recommended dismissal but advised that the claimant first be accorded a fair hearing. No evidence was adduced that such a hearing took place. Section 41 of the Employment Act obliges an employer to hear and consider an employee's representations before dismissal. Absence of a show cause letter and hearing rendered the dismissal procedurally unfair despite justifiable reasons.

p. 3

Quantum of compensation for unfair dismissal

Holding

Nominal compensation of one month's salary awarded because the reasons for dismissal were justified.

Reasoning

Although the Court may award up to 12 months' wages for unfair dismissal, quantum depends on circumstances. Since there were justifiable reasons for dismissal (a history of disciplinary issues including fuel siphoning and misappropriation) and only the procedure was flawed, only one month's salary was awarded as nominal compensation, plus salary for the suspension period.

p. 3

Respondent's counterclaim

Holding

Counterclaim failed as it was not sufficiently proved.

Reasoning

The respondent only exhibited third-party demands for payment of the lost consignment but produced no proof of actual payment. Goods in transportation are generally carried at owner's risk, with insurance typically covering such losses. Without evidence of actual payment, the counterclaim for the consignment, misappropriated funds and diesel could not stand.

p. 3

Legal principles established

Summary dismissal does not dispense with the fair hearing and justification requirements of section 41 of the Employment Act.

Court orders

1.Declaration that the dismissal was justified in terms of reasons but unfair for want of fair procedure
2.Respondent to pay the claimant nominal compensation of one month's salary (Kshs.30,505/=) plus salary for the suspension period
3.Claims for leave and house allowance disallowed
4.Counterclaim dismissed
5.No order as to costs

Authorities

Legislation

Employment Actsection 41, section 41(2)

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "William Nyamongo v Roy Parcel Services Ltd [2015] KEELRC 584 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/584/eng@2015-07-10

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