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ELRCPartially AllowedCause No. 1713 of 2012· [2015] KEELRC 744 (KLR)

John Kiambati v Motorways Construction [2015] KEELRC 744 (KLR)

Employment and Labour Relations Court of Kenya
22 July 2015
HWHellen S. Wasilwa
1,398 words in judgment
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The bottom line

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A Kenyan court ruled a construction worker's summary dismissal unfair because his employer proved neither a valid reason nor a fair disciplinary process, awarding him damages and costs.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 1/2/2007 as a general worker (later promoted to Vibrating Roller Operator), was summarily dismissed on 22/5/2012 after allegations that he had used a company roller to tow a private vehicle, allegedly exposing the company to a loss of Kshs 90,000. He sued for unfair termination, non-payment of notice, prorata pay for May 2012 and leave pay. The respondent justified the dismissal as summary dismissal for gross misconduct and alleged the claimant was heard. The court framed three issues: validity of reasons, due process, and remedies. Applying sections 43, 44(4), 45 and 41 of the Employment Act 2007, it found the alleged misuse was misconduct but not gross misconduct warranting summary dismissal, and that due process was not followed: there was no written notice of a disciplinary hearing and no minutes, the informal office summons not satisfying section 41. The termination was therefore unfair under section 45(1) and (2). On remedies, the court found the monthly salary uncertain and adopted the agreed daily rate of 491.87 x 30 = 14,754, with allowances totalling 18,495, awarding one month's notice, 22 days' May salary, unpaid leave, six months' salary as compensation (total Kshs 161,523), a Certificate of Service and costs against the respondent. The claim thus partially succeeded, with compensation pegged at a computed salary rather than the claimed 23,532 per month.

Key legal issues

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01

Validity of the reason for dismissal

Holding

The alleged misuse of company property was misconduct but did not amount to gross misconduct justifying summary dismissal

Reasoning

The court applied section 43 of the Employment Act, placing the burden on the employer to prove reasons for termination. Although misuse of property warranted some disciplinary action, the conduct complained of did not meet the section 44(4) threshold for gross misconduct warranting summary dismissal.

p. 3
02

Fair procedure before dismissal

Holding

Due process under section 41 was not followed; no written notice of hearing was issued and no minutes of the disciplinary meeting existed

Reasoning

RW3 admitted she summoned the Claimant informally to her office, that no written notice of disciplinary hearing was issued and that there were no minutes. The court held this informal office summons fell short of the hearing envisaged by section 41 of the Employment Act.

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03

Remedies for unfair termination

Holding

The Claimant was unfairly terminated under section 45(1) and (2) and was awarded notice pay, salary and leave arrears, six months' compensation, a certificate of service and costs

Reasoning

Having found no valid reason and no fair procedure, the court found unfair termination under section 45. It fixed the monthly salary at the daily rate of 491.87 x 30 = 14,754 (with allowances = 18,495), awarded one month's notice, May salary for 22 days, unpaid leave, six months' compensation and costs.

p. 3

Legal principles established

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  • In any claim arising out of termination, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair
  • Misconduct short of gross misconduct does not justify summary dismissal
  • Section 41 due process requires written notice of a disciplinary hearing and a proper hearing, not an informal office summons
  • An employee who has worked continuously for over three months ceases to be a casual and is entitled to a computed monthly salary

Court orders

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  1. 1.One month's salary in lieu of notice plus house allowance and other allowances = Kshs 18,495
  2. 2.Salary for 22 days worked in May 2012 = Kshs 13,563
  3. 3.Leave not paid for 20/1/2012 = Kshs 18,495
  4. 4.Six months' salary as compensation for unfair termination = Kshs 110,970
  5. 5.Total award of Kshs 161,523
  6. 6.Claimant to be issued with a Certificate of Service
  7. 7.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 43(1) & (2)
  • Employment Act 2007Section 44(4)
  • Employment Act 2007Section 45(1) & (2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim for unfair termination under the 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, "John Kiambati v Motorways Construction [2015] KEELRC 744 (KLR)", Case Analysis (2015). Cause No. 1713 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/744/eng@2015-07-22

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