Peter Karoki v Alba Petroleum Limited [2016] KEELRC 324 (KLR)

The HR Manager's statement did not demonstrate personal knowledge of the misconduct. She never witnessed the claimant working from the main office instead of the laboratory, and never appraised his performance after the salary increase of 1.3.2012. The person who evaluated the claimant's performance and allegedly saw him abandon the laboratory never adduced evidence. The burden under sections 43, 44, 45 and 47(5) of the Employment Act was therefore not discharged.

Section 41 requires the employer to explain the reasons for intended dismissal to the employee in a language the employee understands, in the presence of a union representative or fellow employee of choice, and to consider representations before dismissal. Although the HR Manager asserted the claimant was given two occasions to explain, the date, venue and names of persons before whom he appeared were not stated. The court found the procedural fairness burden not discharged.

Having found the termination both substantively and procedurally unfair, the court made a declaration as prayed and awarded the twelve months' salary compensation claimed. In fixing the award at Kshs. 1,618,152, the court considered the claimant's long service of over fifteen years and the likelihood that he could not secure alternative employment of the same salary within a year even with due diligence, as guided by section 49 of the Employment Act.