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ELRCPartially AllowedCause No. 148 of 2015 (formerly Bungoma CMCC No. 332 of 2013)· [2016] KEELRC 483 (KLR)

Masoni v Nzoia Sugar Company Ltd (Cause 148 of 2015) [2016] KEELRC 483 (KLR)

Employment and Labour Relations Court of Kenya
8 September 2016
2,953 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 cut a fired worker's 'summary dismissal' to normal termination because he never got a disciplinary hearing, but refused him damages since his certificates were forged.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a shift clerk in 2010, was summarily dismissed on 10th May 2013 after his academic and professional certificates were found by KNEC to be unauthentic during a Public Service Commission-mandated authentication exercise for state corporations. He sued for general damages for unlawful termination, costs and interest, contending his personal file had been manipulated. The court framed two issues: whether the summary dismissal was fair, and whether the claimant was entitled to the prayers sought. On substance, the court found the respondent had valid and sufficient grounds for disciplinary action: the two sets of certificates on record did not add up, the claimant admitted his proper Form 4 grade was D+ while the job required a minimum C-, and his explanation of file manipulation was unconvincing since he was unqualified even on his own alleged correct certificates. However, on procedure, the court found the dismissal procedurally unfair because the claimant was never subjected to a disciplinary hearing as required by section 41 of the Employment Act. On remedies, the court reduced the summary dismissal to normal termination, awarded one month's gross salary in lieu of notice (Shs.26,730), and ordered a certificate of service. Damages for unfair termination were refused because the claimant had falsified his certificates to obtain employment. The remainder of the claim was dismissed, with each party bearing its own costs. Pre-2007 common law authorities on damages were held inapplicable to claims under the Employment Act, 2007.

Key legal issues

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01

Validity of the reason for dismissal (forged certificates)

Holding

The Respondent had valid and sufficient grounds for disciplinary action; the Claimant's certificates were falsified to secure employment he was not qualified for.

Reasoning

The court compared two sets of certificates on record and found inconsistencies in year of birth, examination dates and grades. The Claimant admitted his proper Form 4 grade was D+ while the job required a minimum C-. His explanation that his file was manipulated was unconvincing since he was not qualified even on his alleged correct certificates. The court also observed he was evasive in cross-examination.

p. 5
02

Procedural fairness of the dismissal under section 41 of the Employment Act

Holding

The dismissal was procedurally unfair because the Claimant was not subjected to a disciplinary hearing as provided in section 41.

Reasoning

Apart from discussions of the authentication report on 2nd and 3rd April 2013, no hearing was given. The Claimant was suspended on 17th April 2013 and dismissed on 10th May 2013 without a disciplinary hearing. The Respondent also failed to attach the pages of the Collective Bargaining Agreement containing the disciplinary process.

p. 5
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Appropriate remedies

Holding

Summary dismissal was reduced to normal termination entitling the Claimant to one month's salary in lieu of notice and a certificate of service, but no compensation for unfair termination.

Reasoning

Although the dismissal was procedurally unfair, the grounds (falsified certificates) were so grave that awarding damages would be a travesty of justice. The Respondent had already admitted and offered notice pay and had paid pro rata leave. Unpleaded prayers could not be considered.

p. 6

Legal principles established

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  • An employer must, before terminating employment, explain the reasons and hear the employee's representations as required by section 41 of the Employment Act; failure to subject an employee to a disciplinary hearing renders dismissal procedurally unfair.
  • Under section 43 of the Employment Act the employer must prove the reason for termination; a valid reason existed where the employee presented falsified certificates.
  • Common law measure of damages (notice period) pre-dating the Employment Act, 2007 is not applicable to claims under that Act.

Court orders

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  1. 1.The summary dismissal is reduced to normal termination of employment
  2. 2.Award of one month's gross salary in lieu of notice in the sum of Shs.26,730 or whatever gross salary the Claimant was earning at the time of dismissal
  3. 3.The Claimant is entitled to a certificate of service
  4. 4.The rest of the claim is dismissed
  5. 5.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3), 44(4)(g) and 45
  • Penal Code, Cap 63Chapter X abuse of office, Section 102; Chapter XXXV punishment for forgery, Section 349

Cases cited (7)

  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Nancy Mwangi T/A Worthin Marketers v Airtel Networks (K) Limited (Formerly Celtel Kenya Limited) & 2 others
    [2014] eKLR
  • C. Mehta & Co. Limited v Standard Bank Limited
    [2014] eKLR
  • Alfred J. Githinji v Mumias Sugar Company
    Nairobi Civil Appeal No.194 of 1991
  • Walter Musi Anyanje v Hilton International Kenya Limited & Another
    [2008] eKLR
  • Kenya Ports Authority v Edward Otieno
    Mombasa Civil Appeal No. 120 of 1997
Jurisdiction invoked
Transferred from Bungoma Chief Magistrates Court to the Employment and Labour Relations Court by order of the High Court in Misc. Appl. No. 18 of 2014

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, "Masoni v Nzoia Sugar Company Ltd (Cause 148 of 2015) [2016] KEELRC 483 (KLR)", Case Analysis (2016). Cause No. 148 of 2015 (formerly Bungoma CMCC No. 332 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/483/eng@2016-09-08

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