Gipson Kiplagat Langat v Alitex Enterprises Limited [2015] KEELRC 802 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot punish an employee twice for the same offence or deduct their pay without first giving them a hearing.
What this practically means
#Executive summary
#Key legal issues
#Valid reason for termination (substantive fairness)
The Respondent had no valid reason; the grounds had already been the subject of disciplinary punishment at suspension, so the termination was substantively unfair.
Section 43 requires an employer to demonstrate a valid reason. The allegations in the January 2010 suspension letter were the same ones relied on for the November 2010 dismissal. Having already punished the Claimant through suspension for those offences, dismissing him for the same offences amounted to double jeopardy, rendering the termination substantively unfair.
Procedure for termination (procedural fairness)
The termination was procedurally unfair as the Section 41 procedure was not followed.
The complaints amounted to misconduct, engaging Section 41 of the Employment Act which requires explanation of reasons in a language the employee understands, presence of a representative, and hearing of explanations. No evidence showed the Claimant was taken through any of these steps.
Unlawful deductions from commission (surcharge)
The unilateral deductions amounted to an unlawful surcharge and the Claimant was entitled to a refund.
The Respondent did not deny the deductions but justified them as recovery of losses. Surcharge is a severe disciplinary measure that cannot lawfully be imposed without hearing the affected employee. The unilateral decision to surcharge without a hearing was unlawful, so the refund claim succeeded.
Quantification of remedies where pay was not standard
The Court adopted the Claimant's last commission for computing the award, granting three months' pay as compensation plus one month in lieu of notice.
The Claimant's monthly pay was not standard, so the Court used his last commission for tabulation. In fixing three months' compensation, the Court considered length of service and the Respondent's conduct in the termination process, awarding also one month's pay in lieu of notice under the remedies sought.
Legal principles established
#- Punishing an employee at suspension and later dismissing him for the same offences amounts to double jeopardy, and termination on such already-punished grounds is substantively unfair.
- Suspension is a neutral action to allow investigations and does not attract loss of benefits; using suspension as a disciplinary measure contravenes due process.
- An employer cannot lawfully surcharge an employee without affording the employee a right to be heard.
- Termination for misconduct without compliance with the Section 41 procedure of the Employment Act is procedurally unfair.
Court orders
#- 1.Award of 3 months' pay in compensation for unfair termination of Kshs.57,024.00
- 2.Award of 1 month's salary in lieu of notice of Kshs.19,008.00
- 3.Award of Kshs.27,060.00 for unlawful deductions
- 4.Respondent directed to issue the Claimant with a certificate of service under Section 51 of the Employment Act, 2007
- 5.Costs of the action awarded to the Claimant
- 6.Award to attract interest at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute over wrongful termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gipson Kiplagat Langat v Alitex Enterprises Limited [2015] KEELRC 802 (KLR)", Case Analysis (2015). Cause No 1051 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/802/eng@2015-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.