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ELRCPartially AllowedCause No 1562 of 2010· [2015] KEELRC 1660 (KLR)

Noah Omusulah Akato v Alpha Knits Limited (Cause 1562 of 2010) [2015] KEELRC 1660 (KLR)

Employment and Labour Relations Court
4 March 2015
NMNzioki wa Makau
2,648 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed an employee's dismissal for payroll errors was justified, but awarded compensation because the employer dismissed him while on leave without telling him.

What this practically means

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Executive summary

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The Claimant, employed as a junior clerk responsible for payroll preparation in several departments, sued for unlawful summary dismissal contrary to Sections 41 and 44 of the Employment Act 2007 after being dismissed on 4th November 2010 following payroll anomalies attributed to a clerical trainee, Titus Muthembwa, whom the Respondent said had been assigned to him for training. He sought reinstatement or, in the alternative, salary for December 2010, three months' notice pay, leave dues and damages. The Respondent defended the dismissal as substantively fair, asserting the Claimant was given a show cause letter and replied, admitting the error. The Respondent also contended the suit was improperly filed without exhausting conciliation under the Labour Relations Act. The court found the dismissal substantively justified: the Claimant had specific payroll duties, admitted the trainee posted erroneous data, and proposed casually that the overpayment be corrected in the following month's payroll. On procedure, the court held a written response to the show cause letter satisfied Section 41, applying Kenya Revenue Authority v Menginya Salim Murgani on the point that a hearing need not be oral. However, dismissing the Claimant while he was on leave and only informing him on his return was held procedurally wrong and unfair. The court declined reinstatement as the Claimant was gainfully employed and awarded the dues calculated by the Respondent, one month's salary as notice and one month's salary as compensation, plus a Certificate of Service, with no order as to costs. The claim succeeded only in part.

Key legal issues

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01

Whether the summary dismissal was for just cause

Holding

The dismissal was substantively justified because the Claimant failed to properly execute his payroll preparation duties and adopted a casual approach, allowing erroneous data from a trainee to be posted

Reasoning

The court found the Claimant was assigned specific payroll duties which he knew of. He admitted the clerical trainee posted erroneous data, and in replying to the show cause letter suggested the overpayment simply be recovered the following month, which the court viewed as a casual approach to his duties. The court held he failed to execute his duties properly and was dismissed for just cause.

p. 4
02

Whether the procedure of dismissal was fair

Holding

Although the Claimant was heard (written representation sufficing under Section 41), the manner of dismissal was procedurally unfair because he was dismissed on 4th November 2010 while on leave and only notified on return at the end of his leave

Reasoning

The court accepted that a written reply to a show cause letter constituted a hearing, relying on Kenya Revenue Authority v Menginya Salim Murgani. However, it found the timing of the dismissal contrary to the expectations of fairness: the Claimant proceeded on leave on 1st November 2010, was dismissed on 4th November, and was only handed the letter on return at the end of his leave. The court held the procedure wrong and unfair within the meaning of the law, justifying compensation.

p. 4
03

Whether failure to exhaust conciliation under the Labour Relations Act barred the suit

Holding

The court noted the Claimant reported the dispute to the Ministry, abandoned conciliation and came to Court, describing this as not the ideal way to resolve disputes, but did not strike out the suit

Reasoning

The Respondent argued the dispute was never reported to the Minister as required under Sections 62(1) and 62(3) of the Labour Relations Act and no certificate of disagreement was issued. The court observed the Claimant did report to the Ministry but abandoned the conciliation and came to Court, advising he should have sought a certificate of disagreement. The court nevertheless proceeded to determine the claim on its merits.

p. 4

Legal principles established

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  • The hearing contemplated under Section 41 of the Employment Act need not be oral; written representation in response to a show cause letter satisfies the requirement

Court orders

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  1. 1.Payment of the Claimant's dues as calculated by the Respondent
  2. 2.Payment of Kshs. 10,063/- as salary in lieu of notice (one month's salary as notice)
  3. 3.Payment of Kshs. 10,063/- as damages for unlawful dismissal (one month's salary as compensation)
  4. 4.Issuance of a Certificate of Service in terms of Section 51 of the Employment Act
  5. 5.No order as to costs

Authorities

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Legislation

  • Employment ActSections 41, 44(4)(c), 51
  • Labour Relations ActSections 62(1), 62(3), 69(a)

Cases cited (1)

  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (claim for unlawful summary dismissal under the Employment Act 2007)

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, "Noah Omusulah Akato v Alpha Knits Limited (Cause 1562 of 2010) [2015] KEELRC 1660 (KLR)", Case Analysis (2015). Cause No 1562 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1660/eng@2015-03-04

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