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ELRCPartially AllowedCause No. 920 of 2012· [2015] KEELRC 1129 (KLR)

Jason Siiku Sirima v Doshi & Co (Hardware) Limited [2015] KEELRC 1129 (KLR)

Employment and Labour Relations Court of Kenya
7 May 2015
HWHellen S. Wasilwa
1,419 words in judgment
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The bottom line

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Kenya's Employment Court awarded a dismissed employee 12 months' salary because his employer gave no hearing before firing him.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 6 January 2002 as an Export Sales Officer earning a consolidated salary which had risen to Kshs. 73,000/=, was summarily dismissed on 29 October 2010 for allegedly divulging sensitive information to a third party - specifically giving invoices to SGS, an inspection agent for goods exported to Burundi. He claimed unfair, illegal, wrongful and unlawful termination and failure to pay termination benefits, contending he was never given a hearing. The Respondent maintained the dismissal was lawful and procedural, on grounds of gross misconduct, and that the Claimant was paid terminal dues of Kshs. 88,154/=, pension dues of Kshs. 212,401/=, his leave entitlements, and one month's salary in lieu of notice. The Court framed three issues: validity of reasons, due process, and entitlement to prayers. On the first, the Court found the alleged conduct fell outside the acts of gross misconduct enumerated in Section 44(4) of the Employment Act, and noted that payment of terminal dues was inconsistent with a summary dismissal, showing the Respondent lacked valid reasons. On the second, the Respondent failed to produce minutes of the alleged disciplinary meeting, and the hearing it described fell below the Section 41 standard; due process was thus not followed and the dismissal was unfair and unjustified. On remedies, only 12 months' salary as compensation (Kshs. 876,000/=) was awarded, as terminal dues, pension, notice pay and leave had already been paid or the claim was untrue. The Court ordered a Certificate of Service and awarded costs to the Claimant.

Key legal issues

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01

Whether the Respondent had valid reasons to dismiss the Claimant

Holding

The Court found no valid reason: the alleged divulging of information did not constitute any of the acts of gross misconduct listed in Section 44(4) of the Employment Act, and payment of terminal dues showed the dismissal was not a summary dismissal for gross misconduct.

Reasoning

The Court examined Section 44(4) of the Employment Act which enumerates acts amounting to gross misconduct justifying summary dismissal. The Claimant's alleged offence of giving an invoice to SGS, an inspection agent, did not fall within any of the listed acts. Further, since the Respondent paid the Claimant terminal dues of 88,154/= and pension of 212,401/=, the dismissal was not in its nature a summary dismissal, indicating the Respondent lacked valid reasons to dismiss summarily.

p. 3
02

Whether due process was followed before the dismissal

Holding

Due process was not followed; the dismissal was unfair and unjustified.

Reasoning

Section 41 of the Employment Act requires an employer to explain the reasons for termination to the employee and to hear and consider any representations before terminating on grounds of misconduct. The Claimant was not accorded any hearing. The Respondent alleged a hearing took place but failed to produce the minutes of the alleged meeting, and what it described as a disciplinary hearing fell below the standard set by Section 41.

p. 3
03

Whether the Claimant is entitled to the prayers sought

Holding

Partially allowed: only 12 months' salary as compensation for unlawful termination, a certificate of service and costs were awarded; claims for terminal dues, leave and notice pay failed as those were already paid or untrue.

Reasoning

The Claimant admitted receiving 88,154/= in terminal dues, 212,401/= in pension dues and one month's salary in lieu of notice. His claim of not taking leave in 2010 was contradicted by the Respondent's Appendix 3 showing 18 days' leave from 21/9/2010. The Court therefore limited relief to the statutory maximum compensation of 12 months' gross salary for unlawful termination.

p. 3

Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, explain the reasons to the employee and hear and consider any representations made by the employee, failing which the dismissal is unfair.
  • Payment of terminal dues to a dismissed employee is inconsistent with the nature of a summary dismissal for gross misconduct and indicates the employer did not have valid reasons for summary dismissal.

Court orders

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  1. 1.Award of 12 months' salary as compensation for unlawful termination, computed as 12 x 73,000/= = 876,000/=
  2. 2.Respondent to issue the Claimant with a Certificate of Service
  3. 3.Respondent to meet the costs of the suit

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over unfair and unlawful termination of employment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Jason Siiku Sirima v Doshi & Co (Hardware) Limited [2015] KEELRC 1129 (KLR)", Case Analysis (2015). Cause No. 920 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1129/eng@2015-05-07

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