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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 763 (KLR)

Jaffar Mohamed v Ready Consultancy Co. Ltd [2015] KEELRC 763 (KLR)

Employment and Labour Relations Court
17 July 2015
OMO. N. Makau
2,242 words in judgment
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The bottom line

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A Kenyan court ruled a mechanic's dismissal for alleged theft unlawful because the employer proved neither a valid reason nor a fair hearing, awarding about Kshs.119,000.

What this practically means

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Executive summary

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The Claimant, a mechanic employed by the Respondent in May 2011 at a monthly salary of Kshs.17,000, was summarily dismissed in July 2012 after a flange for a propeller shaft allegedly went missing at the workshop. He sued for damages for unlawful termination, contending the dismissal was malicious, without notice, without valid reason and without due procedure under the Employment Act. The Respondent defended the dismissal as summary dismissal for gross misconduct (theft) and asserted all lawful dues were paid. The court framed two issues: whether the dismissal was unlawful and whether the reliefs sought should be granted. On the first issue, the court held that the employer failed to prove a valid and fair reason: the alleged theft rested on a mere verbal report from a workshop manager who was not called as a witness, making the loss hearsay; the dismissal of several mechanics showed the culprit was not identified; and the Claimant's evidence that the flange's size, weight and gate security made theft impracticable was unrebutted. Procedurally, the meeting convened by the Human Resource Manager did not satisfy Section 41 of the Employment Act, since the Claimant was never told the reason or basis for the intended dismissal nor invited to respond. The dismissal was therefore declared unlawful and unfair. Under Section 49(1), the court awarded one month's salary in lieu of notice (Kshs.17,000) and six months' gross salary as compensation (Kshs.102,000), declining the maximum twelve months given the short service and re-employment prospects. General damages were refused as covered by notice pay. Judgment was entered for the Claimant for Kshs.119,000 plus costs and interest, dated and delivered at Mombasa on 17 July 2015.

Key legal issues

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01

Whether the Respondent proved a valid and fair reason for the dismissal

Holding

No - the alleged theft was unproven hearsay; the dismissal lacked a valid and fair reason

Reasoning

The employer relied on a mere verbal report from the workshop manager, who was not called as a witness. The dismissal of several mechanics showed the thief was not identified. The Claimant's unrebutted evidence on the size, weight and security checks of the flange further undermined the allegation. The court therefore found no valid and fair reason under Sections 43 and 45 of the Employment Act.

p. 3
02

Whether the Claimant was accorded a fair hearing under Section 41 of the Employment Act

Holding

No - the meeting with the mechanics did not amount to a fair hearing

Reasoning

Section 41 requires, in mandatory terms, that before dismissal for misconduct the employee be heard in a language he understands, be told the reason for contemplated dismissal, be advised of the right to be accompanied, and be invited to respond. Rw1 merely summoned the mechanics and asked about the flange's whereabouts without explaining the basis of the accusation, rendering the summary dismissal unfair.

p. 4

Legal principles established

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  • Although the test for the reason for termination is subjective, the fairness of the reason calls for an objective test
  • Damages for breach of contract equal the earnings for the notice period (pay in lieu of notice)
  • Under Section 41 of the Employment Act the employer must explain the reason (basis/evidence) for intended dismissal before inviting the employee to respond

Court orders

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  1. 1.Declaration that the summary dismissal was unlawful
  2. 2.One month salary in lieu of notice of ksh.17,000
  3. 3.Compensation of 6 months gross salary for unjustified dismissal being kshs.102,000
  4. 4.Total award of kshs.119,000 plus costs and interest

Authorities

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Legislation

  • Employment ActSection 44
  • Employment ActSection 43(2)
  • Employment ActSection 45(2)(a) & (b)
  • Employment ActSection 41
  • Employment ActSection 49(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Jaffar Mohamed v Ready Consultancy Co. Ltd [2015] KEELRC 763 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/763/eng@2015-07-17

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