Francis Obulinji v National Cereals and Produce Board [2015] KEELRC 766 (KLR)
The bottom line
#A Kenyan court ruled an NCPB employee's dismissal unfair because the employer couldn't prove its allegations, awarding him 12 months' wages.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The process was partly unfair because the Respondent failed to make available and consider documents and records the Claimant requested to check; otherwise the notice and hearing requirements of section 41 were met.
The employer outlined allegations in the suspension letter, gave the Claimant three days to respond and he replied, and he appeared before the Staff Advisory Committee where he made representations before dismissal was recommended. He did not show that three days was inadequate or that lack of accompaniment caused prejudice. However, his request to check the records was ignored, and the Court found the records were crucial and their non-consideration prejudiced him, rendering part of the process unfair.
Substantive fairness of the summary dismissal
The dismissal was substantively unfair because the Respondent failed to prove the alleged reasons for dismissal.
The reasons were that the Claimant posted CDAs unsupported by green copies of Sales Orders and posted one Sales Order to support two CDAs, causing a loss of Kshs 1,758,350/-. The internal auditor's report attributed receipt of the money to an Assistant Depot Manager, the Claimant was on leave during part of the relevant period, the underlying documents were not produced, and no log-in system identified who made the entries. With these unexplained gaps, the Respondent failed to prove the Claimant committed the acts.
Appropriate remedies for unfair dismissal
Compensation under section 49(1) of the Employment Act awarded at 12 months' wages (Kshs 372,492/-), based on a notional monthly wage of Kshs 31,041/- and 24 years of service.
Although the Claimant did not expressly plead unfair termination, the Court concluded the dismissal was unfair and considered it a suitable case for compensation. The Claimant served about 24 years. Since he did not disclose his wages at separation, the Court used the figure appearing in the Respondent's Statement of Final Dues (Kshs 31,041/-) to assess the maximum compensation of Kshs 372,492/-.
Defamation
No case was made out on defamation, including its competence before the ELRC.
Though pleaded, no case was made for defamation or even whether it was a competent cause of action before this Court as opposed to the High Court. The Court accordingly made no finding and gave no relief on the defamation claim.
Respondent's counterclaim
Counterclaim partly misconceived: the Kshs 1,758,350/- loss could not be claimed from the Claimant where the audit report showed it was received by Opuka; the imprest and staff credit sales portion may be deducted from the Claimant's dues.
The audit report admitted that the Assistant Depot Manager at Ainabkhoi received the Kshs 1,758,350/- and did not surrender it, so there is no legal basis for claiming that sum from the Claimant. The remaining portion comprising imprest and staff credit sales is recoverable by deduction from the Claimant's dues. The Barclays loan is a matter between the Claimant and the bank.
Legal principles established
#- Procedural fairness under section 41 of the Employment Act requires the employer to inform the employee of the allegations, afford an opportunity to respond, allow accompaniment by a colleague or union representative, and consider documents the employee requests to check; failure to consider crucial records prejudices the employee.
- Under sections 43 and 45 of the Employment Act the employer must prove the reasons for dismissal and that they are valid and fair; gaps in the employer's evidence defeat proof of the reasons.
- Lost income claims must be capable of at least some estimated computation and must have a contractual or legal basis.
Court orders
#- 1.A declaration that the summary dismissal of the Claimant was unfair
- 2.Respondent to pay the Claimant 12 months wages compensation of Kshs 372,492/-
- 3.All other heads of claim dismissed
- 4.Claimant denied costs for failure to serve submissions as directed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment Act, 2007 (employment relationship between the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Obulinji v National Cereals and Produce Board [2015] KEELRC 766 (KLR)", Case Analysis (2015). Cause (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/766/eng@2015-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.