Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries v Highlands Paper Mills Ltd [2016] KEELRC 185 (KLR)
The bottom line
#A Kenyan court upheld a worker's summary dismissal because he refused to even read the employer's show-cause letter, earning only his final month's pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Grievant was procedurally fair under section 41 of the Employment Act, 2007
The dismissal was procedurally fair; the Respondent substantially complied with section 41
The show cause notice set out the allegations clearly and gave the Grievant 48 hours to respond, consistent with clause 17(c) of the CBA. The Grievant refused to accept the notice and snubbed the opportunity to make representations. Section 41 does not mandate an oral hearing; correspondence suffices. Clause 17(e) of the CBA contemplates summary dismissal where an employee refuses to accept a warning, a principle the Court extended to refusal to accept a show cause. The Grievant therefore had an opportunity to be heard.
Whether sections 41(1) and 43(1) & (2) of the Employment Act apply to summary dismissal
They do apply; the Respondent's contrary submission was misplaced
The Respondent argued that sections 41(1) and 43(1) & (2) do not apply to summary dismissal. The Court rejected this, holding that section 41(2) expressly subjects summary dismissals on account of misconduct, poor performance and physical incapacity to the procedural fairness requirements of section 41(1). The submission therefore had no basis in law.
What remedies, if any, were available to the Grievant
Only wages for April 2013 (Kshs 12,338/-) were awarded; all other heads were declined
Because the dismissal was fair, pay in lieu of notice and compensation did not lie. Accrued leave and overtime claims failed for want of evidential foundation and had in any event been paid per the dismissal letter. Service pay was declined because the Court was not addressed on its availability where dismissal is fair. The Grievant was entitled as of right to earned wages up to 30 April 2013, his monthly wage of Kshs 12,338/- being uncontested.
Legal principles established
#- Section 41 of the Employment Act does not require an oral hearing; the process contemplated may be oral, through correspondence, or a combination of both
- Summary dismissal on account of misconduct is subject to the statutory procedural fairness requirements of section 41(1)
- An employee who refuses to accept a show cause notice and snubs the opportunity to respond cannot claim denial of a hearing; an employee is under a common law obligation to cooperate in disciplinary proceedings
Court orders
#- 1.Dismissal of the cause of action founded on wrongful dismissal (dismissal found fair)
- 2.Award of April 2013 wages of Kshs 12,338/- to the Grievant
- 3.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (reference/cause procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries v Highlands Paper Mills Ltd [2016] KEELRC 185 (KLR)", Case Analysis (2016). Not stated in the judgment (Cause commenced 14 November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/185/eng@2016-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.