Masoni v Nzoia Sugar Company Ltd (Cause 148 of 2015) [2016] KEELRC 483 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the reason for dismissal (forged certificates)
The Respondent had valid and sufficient grounds for disciplinary action; the Claimant's certificates were falsified to secure employment he was not qualified for.
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.
Procedural fairness of the dismissal under section 41 of the Employment Act
The dismissal was procedurally unfair because the Claimant was not subjected to a disciplinary hearing as provided in section 41.
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.
Appropriate remedies
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.
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.
Legal principles established
#- 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
#- 1.The summary dismissal is reduced to normal termination of employment
- 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.The Claimant is entitled to a certificate of service
- 4.The rest of the claim is dismissed
- 5.Each party shall bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.