Hezborn Tonny Mashaka v The Watchdog Limited [2016] KEELRC 13 (KLR)
The bottom line
#Kenya's Employment Court confirmed an employer can dismiss without notice for gross misconduct, but only after giving the employee a genuine hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for summary dismissal under section 44 of the Employment Act
The Respondent proved gross misconduct - misuse of the company vehicle, forgery of inspection records and absence from duty - justifying summary dismissal
The court found the testimony of the Respondent's witnesses (Magero and Karanja) credible and materially unchallenged. Karanja confirmed his signatures on inspection sheets had been forged, and Magero saw the company vehicle used outside patrol areas for private purposes. The court also relied on the Respondent's letter of 20th February 2014. Such conduct constituted fundamental breach warranting summary dismissal under section 44.
Compliance with the hearing requirement of section 41(2)
The employer satisfied section 41(2) by confronting the Claimant with the allegations on 23rd December 2013 in the presence of the operations manager
The court found the Respondent's evidence that the Claimant was told of his misconduct upon reporting on 23rd December 2013 credible. It discounted the evidence of Mr Baraza, the former operations manager called by the Claimant, as tainted by conflict of interest and alleged collusion in falsifying records. A hearing need not resemble a trial; internal processes suffice.
Salary dues upon dismissal
The Claimant is entitled to salary up to the date of dismissal, computed at Kshs.7,890.00 for 23 days
Having found the termination effective on 23rd December 2013, the court awarded pay for the days worked up to that date on the monthly salary of Kshs.11,840.00. Notice pay was refused as the summary dismissal was justified.
Legal principles established
#- Before terminating an employee for gross misconduct, the employer must give the employee a hearing under section 41(2) of the Employment Act; where summary dismissal under section 44 is warranted, the employer may dismiss without notice but must demonstrate the circumstances justifying it.
- Internal disciplinary proceedings are not court proceedings or criminal trials; the requirement is that an employee be reasonably given a hearing to present his defence.
Court orders
#- 1.Claimant entitled to pay up to 23rd December 2013; dues for 23 days on a monthly salary of Kshs.11,840.00 amounting to Kshs.7,890.00
- 2.Notice pay declined
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rose Wambui Karanja v Aberdare Engineering Limited [2020] KEELRC 1688 (KLR)[2020] KEELRC 1688 (KLR)29 Jan 2020
Cite this brief
#Cite this brief
Caselaw, "Hezborn Tonny Mashaka v The Watchdog Limited [2016] KEELRC 13 (KLR)", Case Analysis (2016). Cause No. 966 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/13/eng@2016-09-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.