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ELRCPartially AllowedIndustrial Cause (number not stated in judgment)· [2015] KEELRC 1215 (KLR)

Fred Onyango Aduda v Kamongo Waste Paper Limited [2015] KEELRC 1215 (KLR)

Industrial Court (Employment and Labour Relations Court)
6 March 2015
NMNzioki wa Makau
2,487 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a driver 12 months' pay because his employer fired him without following the fair-hearing steps required by law.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a driver for over 20 years, was summarily dismissed in September 2013 and paid Kshs. 64,880/-, being one month's notice and severance pay. He sued for 12 months' pay as damages for unlawful and unfair termination. The Respondent justified the dismissal on allegations of loss of 100 cartons of goods destined for Isebania, a gas cylinder accident at Kisii, loss of clothing material from Nakuru, absenteeism and insubordination. The Claimant testified that he was never given a letter explaining the dismissal and that delivery notes existed to exonerate him on the Isebania deliveries. The Respondent's witness, the Transport Manager, conceded that no delivery notes, OB reports, warning letters or sign-in registers were produced in evidence, and admitted the Claimant was a diligent employee. The Court held that although the managerial prerogative cannot be taken away from employers, it must be exercised in accordance with the law. The Respondent failed to adhere to the procedural dictates of Section 41 of the Employment Act, and the dismissal, even if merited, was contrary to fairness and natural justice. The Court found the Claimant entitled to 12 months' compensation for unlawful and unfair termination and, in the final analysis, entered judgment for the Claimant against the Respondent for Kshs. 202,800/- plus costs of the suit.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The dismissal, even if merited on the alleged incidents, was unfair and unlawful because the Respondent failed to follow the procedure in Section 41 of the Employment Act

Reasoning

The Respondent relied on incidents at Isebania, Kisii and Nakuru to justify dismissal but did not adhere to the dictates of Section 41 of the Employment Act, which requires notification of allegations and an opportunity to respond. No records, reports, delivery notes or warning letters were availed to court. The Claimant, having served over 20 years, was entitled to better treatment. The dismissal was therefore contrary to fairness and natural justice, entitling him to compensation.

p. 4
02

Burden of proving reasons for termination

Holding

The burden of proving the reason for termination lay on the Respondent under Section 43(1), and the Respondent failed to avail documentary evidence of the incidents relied upon

Reasoning

The Respondent alleged loss of goods at Isebania, a gas cylinder accident at Kisii and loss of clothing material from Nakuru, but its own witness conceded that no delivery notes, OB reports or warning letters were produced. The Claimant's counsel invoked Section 43(1). The Respondent's evidence of the incidents remained unsubstantiated, undermining its justification for dismissal.

p. 3

Legal principles established

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  • Employers exercising managerial prerogative must adhere to the law, including the procedural fairness requirements of Section 41 of the Employment Act

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for Kshs. 202,800/- being 12 months' compensation for unlawful and unfair termination
  2. 2.Costs of the suit awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 44
  • Employment ActSection 44(4)(a) to (g)
  • Employment ActSection 45
  • Employment ActSection 45(2)(b)
  • Employment ActSection 43(1)

Cases cited (3)

  • Shankar Saklani v DHL Global Forwarding
    Cause No. 562 of 2012
  • Linus Barasa Odhiambo v Wells Fargo Limited
    Industrial Cause No. 275 of 2012
  • Professor Gitile v Multi Media University College & Another
    Cause No. 1200 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims of unfair and unlawful termination of employment under the Employment Act (specific provision not stated in judgment)

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, "Fred Onyango Aduda v Kamongo Waste Paper Limited [2015] KEELRC 1215 (KLR)", Case Analysis (2015). Industrial Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1215/eng@2015-03-06

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