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ELRCPartially AllowedCause No. 108 of 2015· [2016] KEELRC 481 (KLR)

Karume Enock v Diesel Inject Services Limited [2016] KEELRC 481 (KLR)

Employment and Labour Relations Court
15 September 2016
MOMaureen Onyango
2,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reduced a summary dismissal to normal termination, awarding only one month's notice pay because the employee couldn't prove his qualifications.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent and was summarily dismissed on 25th April 2014 for failing to produce his original Grade I Trade Test Certificate for authentication. He claimed he was employed as Artisan Grade 1 in August 2009 and sought unpaid salaries for underpayment, severance pay, three months' salary in lieu of notice, general damages for wrongful termination, and costs. The Respondent maintained the Claimant was an ungraded artisan, that a March 2011 letter grading him as Artisan Grade 1 was issued in error and withdrawn, and that the dismissal was substantively and procedurally fair as he repeatedly failed to produce the original certificate. The case proceeded by written submissions by consent. The court framed the main issue as whether the Claimant held a valid Grade I Trade Test Certificate, answering it in the negative since the original was never produced despite several demands and a disciplinary hearing. Applying section 47(5) of the Employment Act, the court held the employee failed to prove wrongful termination or underpayment. However, it found the dismissal procedurally unfair as the Claimant was ambushed with the hearing without adequate preparation. Holding that compensation is only payable for substantive unfairness, the court reduced the summary dismissal to normal termination and awarded one month's salary in lieu of notice (Shs.19,227) under section 49(1)(a) and (b), being the CBA entitlement for under five years' service. The prayers for underpayment, severance pay and damages were dismissed, and each party was ordered to bear its own costs.

Key legal issues

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01

Authenticity of the Claimant's Grade I Trade Test Certificate

Holding

The Claimant failed to prove he held a valid Grade I certificate as he never produced the original despite repeated demands

Reasoning

The court found that both the underpayment claim and the termination claim hinged on the certificate. The Claimant was required severally to produce the original for authentication and was even disciplined for failure to produce it. His failure to produce the original, including after suspension and a show-cause letter, meant he did not discharge the burden of proving entitlement to Grade I pay or wrongful dismissal.

p. 4
02

Substantive and procedural fairness of the summary dismissal

Holding

There was valid reason to dismiss the Claimant but the procedure was unfair because he was not informed in advance of the disciplinary hearing

Reasoning

The ground for dismissal was the Claimant's failure to obey a lawful order to produce his original certificate, which justified dismissal. However, he was ambushed with a disciplinary hearing on reporting to work after suspension and lacked adequate opportunity to consult or prepare, making the termination procedurally wrong.

p. 4
03

Remedies for procedurally unfair but substantively justified dismissal

Holding

Only notice pay under section 49(1)(a) and (b) is payable; the summary dismissal was reduced to normal termination

Reasoning

The court held that compensation or damages are payable only where termination is substantively unfair or for an invalid reason. Where the conduct justifies dismissal but procedure was deficient, the employee's remedy is limited to notice pay under section 49(1)(a) and (b). The court accordingly awarded one month's salary per the CBA, not three months as prayed.

p. 4

Legal principles established

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  • Burden of proving unfair termination rests on the employee, while burden of justifying the grounds rests on the employer (section 47(5) Employment Act)
  • Written submissions cannot replace evidence; they only highlight or expound on evidence on record
  • Where the reason for dismissal is valid but the procedure was not fully fair, the employee is limited to notice pay, not compensation

Court orders

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  1. 1.Reduction of the summary dismissal to normal termination
  2. 2.Payment of one month's salary in lieu of notice in the sum of Shs.19,227
  3. 3.Dismissal of the prayer for underpayments
  4. 4.Dismissal of the prayer for severance pay
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 44(4)(e)
  • Employment Actsection 49(1)(a) and (b)

Cases cited (4)

  • William Menta Nyamoko v Jurgen Fuks t/a Shakatak Night Club
    [2014] eKLR
  • Sarah Wanyanga Muchiri v Rt. Rev. Bishop Henry Kathii & Another
    Industrial Court Cause No. 52 of 2013
  • Walter Ogal Anuro v Teachers Service Commission
    [2015] eKLR
  • Kituu v Nzambi
    (1984) KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

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, "Karume Enock v Diesel Inject Services Limited [2016] KEELRC 481 (KLR)", Case Analysis (2016). Cause No. 108 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/481/eng@2016-09-15

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