Erickson Lukano v Delmonte Kenya Limited [2016] KEELRC 358 (KLR)
The bottom line
#A Kenyan court ruled an employer acted unlawfully by firing a worker over an anonymous email, awarding him over Kshs.579,000 plus interest and costs.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal
The summary dismissal was not for a valid reason; the allegation of receiving a Kshs.500 bribe and a calendar rested on an anonymous email and inconclusive investigations.
The court found it strange that a reputable employer would dismiss a longstanding employee of about four years on one anonymous email without tangible evidence. The claimant's explanation that a supplier bought sodas but gave no money was not seriously challenged. The court agreed with the conciliator that investigations were not conclusive and found the claimant's conspiracy/victimization theory credible, given the immediate promotion of RW1's in-law to the advertised position.
Fairness of the disciplinary procedure
Although a show cause letter was issued and a disciplinary hearing held with shopstewards present, the process was vitiated by the absence of a valid reason; the respondent's reliance on Section 41(1) did not save the dismissal.
The respondent relied on compliance with Section 41(1) of the Employment Act, contending the claimant was given notification and a hearing. RW1 confirmed a show cause letter dated 25th January 2013 and a hearing attended by two shopstewards. However, since the court found the alleged offence to be a 'non-offence' driven by a conspiracy, procedural compliance alone could not render the dismissal lawful and fair.
Remedies for unlawful dismissal
The claimant was awarded eight months' salary as compensation plus notice pay, arrear salary and leave pay, with interest and costs.
In assessing compensation under Section 49, the court considered the claimant's roughly four years of service, his clean employment record, the loss of income and hardship suffered, and that he sought compensation rather than reinstatement. The court awarded eight months' salary (Kshs.440,658.24), one month's notice pay, Kshs.40,280 arrear salary for days worked up to 21st January 2013, and Kshs.43,588.40 for 23.74 admitted leave days.
Legal principles established
#- An employer cannot rely on an anonymous email and unsubstantiated allegations to dismiss a longstanding employee; the dismissal will be wrongful where investigations are inconclusive.
- An employee who proves wrongful summary dismissal on a balance of probability is entitled to compensation under Section 49 of the Employment Act.
Court orders
#- 1.Kshs.440,658.24 compensation for unlawful dismissal
- 2.Kshs.55,082.82 in lieu of one month notice
- 3.Kshs.40,280 arrear salary
- 4.Kshs.43,588.40 in lieu of leave
- 5.Total award of Kshs.579,609.46 with interest at court rates from date of filing suit till payment in full
- 6.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 45 and 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erickson Lukano v Delmonte Kenya Limited [2016] KEELRC 358 (KLR)", Case Analysis (2016). Statement of claim filed 13th November 2013, amended 10th February 2014 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/358/eng@2016-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.