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ELRCPartially AllowedCause No. 1842 of 2013· [2016] KEELRC 59 (KLR)

Benson Muraguri Maina v Kassam & Bros Co. Ltd (Cause 1842 of 2013) (Employment and Labour) [2016] KEELRC 59 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
14 September 2016
MMM. Mbaru
2,504 words in judgment
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The bottom line

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A Kenyan court upheld a dismissal for drunkenness and absenteeism but still ordered the employer to pay three years of untaken leave because it kept no records.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2009 as a casual electronics trainee and later as an electrician under a written contract, was summarily dismissed on 5th August 2013 without a written dismissal letter or stated reasons. He claimed five months' pay for an incomplete contract, unpaid leave for three years, service pay for three years and compensation for unfair termination. The Respondent defended the dismissal on grounds of gross misconduct: repeated intoxication at work and absenteeism, evidenced by warning letters dated 15th October 2012 and 13th June 2013 and the Claimant's own undated apology letter. The court found that the grounds for summary dismissal under section 44(4) of the Employment Act were established, and that save for the failure to issue a written notice of termination, the Respondent substantially complied with the procedural requirements; the lapse was held not unreasonable since the Claimant knew he had been dismissed, and no compensation was awarded. However, the court emphasised that even gross misconduct requires a hearing unless impossibility is demonstrated, and that a summary dismissal should be communicated in writing to preserve the employee's right of challenge under section 47. On remedies, the claim for annual leave pay for three years succeeded because the Respondent failed to produce leave records; service pay failed as NSSF dues were paid, and notice pay failed as it is not due in summary dismissal. Annual leave pay was awarded at Kshs. 39,317.00 (alternatively recorded as Kshs. 39,951.00); all other claims were dismissed with each party bearing its own costs. Judgment delivered by M. Mbaru, Judge, on 14th September 2016.

Key legal issues

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01

Fair procedure before summary dismissal

Holding

Although the Claimant's gross misconduct (intoxication at work and absenteeism) was established and justified dismissal, the Respondent failed to issue a written notice of termination, denying the Claimant his right under section 47 to challenge the dismissal

Reasoning

Section 44(3) and (4) are subject to section 41(2), which mandates a hearing. The court found the Claimant was warned and had apologised for absenteeism, so the misconduct was proven. However, no written communication of dismissal was produced. The court found this lapse not unreasonable since the Claimant knew of his dismissal, so no compensation was awarded.

p. 4
02

Annual leave entitlement

Holding

The claim for annual leave pay for 3 years was due and awarded, as the Respondent failed to produce records showing the leave was taken or paid for

Reasoning

Annual leave is a statutory right under section 28 of the Employment Act. The employer is responsible for ensuring leave is taken and for keeping records. The Respondent's witness testified about a circular requiring leave to be taken, but no records of the Claimant's leave were produced in court, so the claim succeeded.

p. 4
03

Service pay and notice pay

Holding

Service pay was not due because the Respondent paid NSSF and statutory dues; notice pay was not due in a case of summary dismissal for breach of contract

Reasoning

The court held that statutory dues paid through NSSF displace any claim for service pay, and notice pay is incompatible with summary dismissal founded on the employee's breach of contract.

p. 5

Legal principles established

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  • Even on grounds of gross misconduct under section 44(4), an employee must be given a hearing under section 41 before summary dismissal, unless circumstances make a hearing impossible, which must be demonstrated by the employer
  • A summary dismissal must be communicated in writing to enable the employee exercise the right of challenge under section 47 of the Employment Act; the employer cannot justify dismissal for the first time in court
  • The employer bears the responsibility of keeping and producing records of annual leave taken or paid; where such records are not produced, the employee's claim for untaken leave succeeds

Court orders

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  1. 1.Award of annual leave pay for 3 years at Kshs. 39,317.00 (stated in paragraph 32 as Kshs. 39,951.00 based on the last pay slip)
  2. 2.Dismissal of all other dues claimed (5 months' pay for incomplete contract, service pay, notice pay and compensation for unfair termination)
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 41(2)
  • Employment Actsections 44, 44(3) and (4)
  • Employment Actsection 45
  • Employment Actsection 47
  • Employment Actsection 28(1)

Cases cited (6)

  • Linus Barasa Odhiambo versus Wells Fargo Limited
    [2012] eKLR
  • Walter Ogal Anuro versus TSC
    [2013] eKLR
  • Kenya Union of Commercial Food and Allied Workers versus Meru North Farmers Sacco Limited
    Cause No.74 of 2013
  • Joseph Sohelo Mariko & Another versus Pandya Mukesh t/a Relish Restaurant
    Cause No.1237 of 2013
  • Joseph Asare versus Brookside Dairies Ltd
    Cause No.1204 of 2014
  • Dunsmuir versus Brunswick
    [2008] 1 S.C.R
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Benson Muraguri Maina v Kassam & Bros Co. Ltd (Cause 1842 of 2013)  (Employment and Labour) [2016] KEELRC 59 (KLR)", Case Analysis (2016). Cause No. 1842 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/59/eng@2016-09-14

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