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ELRCPartially AllowedCause No. 2472 of 2012· [2015] KEELRC 643 (KLR)

Bernard Mariita Nyangara v Packaging Industries Limited [2015] KEELRC 643 (KLR)

Employment and Labour Relations Court of Kenya
23 July 2015
MMM. Mbaru
2,346 words in judgment
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The bottom line

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A Kenyan court ruled that even when theft is suspected, employers must investigate and give a hearing before summarily dismissing an employee.

What this practically means

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Executive summary

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The Claimant, engaged by the Respondent as a Machine Operator on piece work under a contract running from 8th July 2010 to 31st December 2010, was summarily dismissed on 10th October 2010 after allegedly running off to avoid a body search at clock-out, during which other employees were found with stolen polythene bags fastened to their bodies. He claimed damages for unlawful termination, notice pay, unpaid house allowance, overtime and night allowance. The Respondent maintained the dismissal was per the contract, that the piece work terms were all-inclusive, and that the Claimant absconded and refused to collect his October dues. The Court accepted that piece work is a lawful, recognised form of contract under the Employment Act, 2007, and that no benefits arise outside such a contract, but found the dismissal procedurally unfair: the allegation of criminal conduct warranted investigation, and no notice, hearing or effort to recall the Claimant was shown. The Claimant's evidence therefore sufficed. He was awarded one month's pay of Kshs.14,710 as compensation, ordered to collect his outstanding October 2010 dues, and granted 50% of his costs. Claims for overtime, house and night allowances were declined for want of evidence. Judgment was delivered at Nairobi on 23rd July 2015 by M. Mbaru, Judge.

Key legal issues

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01

Fairness of the summary dismissal

Holding

The termination was procedurally unfair - no notice, no hearing, no investigation of the alleged theft, and no effort to recall the absconding Claimant

Reasoning

The respondent alleged theft but conducted no investigations despite the seriousness of criminal conduct. It made no effort to recall the Claimant to complete his contract running to 31st December 2010, made no communication to him, and did not mention the Labour Office resolution effort. Lacking material evidence, the Claimant's evidence suffices, and procedural lapses favour the claimant.

p. 4
02

Effect of a piece work contract on claimed benefits

Holding

Piece work is a recognised lawful form of contract; claims for overtime, house and night allowances fail absent evidence, as the contract terms were all-inclusive

Reasoning

Section 2 of the Employment Act defines piece work, and section 18(1) governs payment. The Court endorsed the position in Jowasi Ambudo v Kenafric Industries that piece work contracts end each day and payments are all-inclusive, attracting no full-time employee benefits. The Claimant admitted he was on piece rate, confirmed by the respondent, and no illegality was shown.

p. 3
03

Compensation for unfair termination

Holding

The Claimant is entitled to compensation; one month's pay of Kshs.14,710 awarded

Reasoning

Having found the respondent erred in procedure, the Claimant is entitled to compensation. The respondent's offer of 3 months was considered generous but the Court awarded one month's pay, taking into account the circumstances including the Claimant's own conduct of running off and not resuming duty.

p. 4

Legal principles established

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  • Where an employer alleging criminal conduct dismisses an employee summarily, investigations and appropriate sanction in law are required
  • Where the respondent is the sole custodian of employment records and produces no written warning, notice or evidence of a hearing, such lapses apply to the advantage of the claimant
  • Piece work contracts are lawful and their terms are all-inclusive; no rights arise outside the agreed piece work contract

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Kshs.14,710 being one month's pay as compensation for unfair termination
  2. 2.The Claimant to collect any dues owed to him for the month of October 2010
  3. 3.The Claimant awarded 50% of his costs

Authorities

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Legislation

  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 2 (definition of piece work)
  • Employment Act, 2007section 18(1)
  • Employment Act, 2007sections 7, 8, 37

Cases cited (2)

  • Jowasi Ambudo & Others versus Kenafric Industries Ltd
    Cause No. 462 of 2010
  • Wycliffe Bengi versus M/s Regal Oil (K) Limited
    Cause No. 1175 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (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 (1)

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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, "Bernard Mariita Nyangara v Packaging Industries Limited [2015] KEELRC 643 (KLR)", Case Analysis (2015). Cause No. 2472 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/643/eng@2015-07-23

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