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ELRCPartially AllowedCause No 1476 of 2013· [2016] KEELRC 265 (KLR)

David Nganga Mwangi & 3 others v Vtechnologies Kenya Limited [2016] KEELRC 265 (KLR)

Employment and Labour Relations Court
25 November 2016
2,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that dismissing workers by SMS without a hearing was unfair, awarding four employees over Kshs.3.5 million.

What this practically means

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Executive summary

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Four claimants sued by amended memorandum of claim seeking reliefs for summary dismissal. They had arranged a meeting with the managing director on 22nd August 2013 to press for a review of employment terms promised in a memo but unfulfilled for months. After waiting for hours without being addressed, they left, whereupon the employer sent them to collect sealed letters at a security office, refused to collect them, and dismissed them summarily by SMS on 25th August 2013 without notice to show cause or a disciplinary hearing. The respondent contended the claimants absconded duty to attend an unauthorised meeting and refused to respond to a disciplinary letter. The court framed two issues: whether termination was for a valid reason and by fair procedure, and entitlement to reliefs. It found the claimants' conduct reasonable, held that insubordination for failing to respond to a letter was not a valid reason under section 44 of the Employment Act, and that the dismissal was substantively and procedurally flawed for want of a section 41 hearing. The court held the claimants were victimised for exercising their constitutional right to organise and raise grievances. Applying Loice Otieno per Radido J, it awarded each claimant one month's notice pay, untaken leave pay, and compensation of five to ten months' salary scaled to service; gratuity and severance pay were refused as the claimants were NSSF-registered and not retrenched. Total awards were Kshs.565,947, Kshs.842,841, Kshs.1,136,083 and Kshs.966,775.40 respectively, with interest from filing and costs to follow the outcome. Judgment delivered at Nairobi on 25th November 2016 by Principal Judge Mathews Nderi Nduma.

Key legal issues

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01

Whether the summary dismissal was for a valid reason and by fair procedure

Holding

The dismissal was substantively and procedurally flawed; insubordination for failing to respond to a letter was not a valid reason under section 44 of the Employment Act, and no disciplinary hearing was afforded under section 41

Reasoning

The employees had sought a meeting to discuss unfulfilled promises of review of terms; their conduct was reasonable. The employer dismissed them summarily by SMS without notice to show cause or a disciplinary hearing, and other employees who similarly failed to respond were not dismissed, evidencing victimisation of the claimants for raising a collective grievance.

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02

Right to organise and raise grievances at the workplace

Holding

The claimants were victimised for exercising their right to organise and raise a collective grievance, contrary to fair labour practice protected by the Labour Relations Act, 2007 and Article 41 of the Constitution

Reasoning

The court found the employees' conduct in seeking a meeting with the managing director reasonable, and that the respondent's 'divide and rule' tactic and selective dismissal of the claimants violated fair labour practices protected by statute and the Constitution.

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Reliefs for each claimant

Holding

Each claimant awarded one month's salary in lieu of notice, untaken leave pay, and compensatory damages of 5 to 10 months' salary depending on length of service; gratuity and severance pay refused

Reasoning

Compensation was scaled to length of unblemished service and the absence of contributory fault. Notice pay and accrued untaken leave were awarded as contractual/statutory entitlements; NSSF contributions precluded gratuity and the absence of retrenchment precluded severance pay.

p. 5

Legal principles established

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  • An employer must comply with the procedural fairness requirements of section 41 of the Employment Act even where summary dismissal is contemplated
  • Workers have an inherent and constitutional right to organise and air grievances, and victimisation for exercising work rights is viewed dimly by the court

Court orders

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  1. 1.Respondent to pay 1st claimant David Nganga Mwangi Kshs.565,947.00
  2. 2.Respondent to pay 2nd claimant Joseph Muhanga Karanja Kshs.842,841.00
  3. 3.Respondent to pay 3rd claimant John Kinya Ngaruiya Kshs.1,136,083.00
  4. 4.Respondent to pay 4th claimant Lawrence Maina Kahiga Kshs.966,775.40
  5. 5.Award to be paid with interest at court rates from date of filing suit till payment in full
  6. 6.Costs to follow the outcome

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment Act, 2007sections 35, 41, 44
  • Labour Relations Act, 2007

Cases cited (2)

  • Loice Otieno –vs- Kenya Commercial Bank
    Industrial Court case No. 1050 of 2010
  • Alphonce Maghanya Mwanchanya –vs- Operation 680 Limited
    Industrial case number 146 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution of Kenya, 2010

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, "David Nganga Mwangi & 3 others v Vtechnologies Kenya Limited [2016] KEELRC 265 (KLR)", Case Analysis (2016). Cause No 1476 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/265/eng@2016-11-25

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