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ELRCPartially AllowedCause No. 1355 of 2013· [2015] KEELRC 657 (KLR)

Christopher Kariuki Gikonyo v Cargo Services Centre East Africa BV T/A Swissport Cargo Services Kenya [2015] KEELRC 657 (KLR)

Employment and Labour Relations Court of Kenya
9 July 2015
MMM. Mbaru
2,845 words in judgment
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The bottom line

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Kenya's Employment Court ruled Swissport unfairly dismissed a worker for insubordination because it never clearly stated which instructions he had disobeyed.

What this practically means

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Executive summary

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The claimant, a Warehouse Operator employed by the respondent in July 2007, was summarily dismissed on 30th November 2010 for allegedly failing to comply with lawful instructions from his superiors after an incident on 14th November 2010 during cargo transfer in which his KAA gate pass was confiscated. By consent of 19th May 2015, leave dues, a certificate of service and pension release were settled, leaving for determination the unfairness of the dismissal, notice pay, meal balance and compensation. The court held that for insubordination to warrant summary dismissal there must be wilful disobedience of precise and unequivocal instructions. The show cause letter and disciplinary hearing notes failed to identify the instructions disobeyed, left major gaps as to the charge and the persons conducting the hearing, and shifted from the original incident to the claimant's non-attendance of a meeting. Citing section 41 of the Employment Act, the applicable CBA and Frederick Odongo Owegi v CFC Life Assurance Ltd, the court found the hearing fell short of genuine due process and that summary dismissal was too harsh a sanction, amounting to an unfair labour practice. Reinstatement was refused as impracticable after over three years. The court awarded three months' salary as compensation, one month's notice pay and the balance of meal refunds, with 50% costs to the claimant. Judgment was delivered by M. Mbaru, Judge, on 9th July 2015 at Nairobi.

Key legal issues

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01

Whether summary dismissal for insubordination was justified

Holding

The dismissal was not justified; the disciplinary process left major gaps as to the charge, the instructions allegedly disobeyed were never clearly identified, and summary dismissal was too harsh a sanction

Reasoning

The show cause letter and hearing notes did not specify which lawful and unequivocal instructions the claimant wilfully disobeyed; the hearing shifted from the 14th November incident to mere non-attendance of a meeting. Applying section 41 of the Employment Act and the CBA, the process lacked clarity and fairness, amounting to an unfair labour practice.

p. 4
02

Requirements for a fair hearing before summary dismissal

Holding

Before summary dismissal an employer must prove just cause: the employee must know his charge, be given time to respond, and the section 41 hearing and CBA procedures must be genuinely followed; omissions negate the action ab initio

Reasoning

Relying on Frederick Odongo Owegi v CFC Life Assurance Ltd, the court held that proper investigations must precede dismissal, the employee notified and heard, and CBA terms followed. Hearings must not be predetermined shams, and any omission in the process negates the resultant dismissal ab initio.

p. 4

Legal principles established

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  • Insubordination requires wilful disobedience of precise and unequivocal lawful instructions; ambiguity in instructions undermines a charge of insubordination
  • Disciplinary hearings must be genuine, clear and orderly, not a sham, and section 41 hearings must be conducted in good faith
  • Where a CBA confers a right of appeal, the employee should be notified of it; presence of a shop steward does not by itself establish due process

Court orders

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  1. 1.Judgment entered for the claimant
  2. 2.Compensation at Kshs.48,486.00
  3. 3.Notice pay at Kshs.16,282.00
  4. 4.Balance of meals due at Kshs.22,040.00
  5. 5.50% costs

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 41
  • Employment Actsection 35
  • Employment Actsection 44
  • Employment and Labour Relations Court Actsection 12(3)(vii)

Cases cited (5)

  • David Otunga Kenani versus Office of the Controller and Auditor General
    Cause No.933 of 2013
  • Dalmas B Ogoye versus KNTC Ltd
    [1996] eKLR
  • Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg)
    (1989) 10 ILJ 311 (IC)
  • Jenny Luesby versus Standard Group Ltd
    Cause No.137 of 2014
  • Frederick Odongo Owegi versus CFC Life Assurance Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12 (first-instance jurisdiction over employment disputes)

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, "Christopher Kariuki Gikonyo v Cargo Services Centre East Africa BV T/A Swissport Cargo Services Kenya [2015] KEELRC 657 (KLR)", Case Analysis (2015). Cause No. 1355 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/657/eng@2015-07-09

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