Kenya Shoe & Leather Workers Union v HR Strategic Partners Ltd [2016] KEELRC 597 (KLR)
The bottom line
#A Kenyan court ruled that even suspected thieves at work must get a hearing before summary dismissal, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of summary dismissal
The summary dismissal was unfair because the Grievant was given neither notice nor hearing despite the employer being able to communicate with him
Section 44 permits summary dismissal but the right is regulated by section 41(2), which requires the employer to hear the employee's representations before dismissal. The Respondent alleged the Grievant sneaked back to premises during investigations, but when communication was issued he duly complied, showing the employer could reach him. No exceptional circumstances excusing non-compliance were set out, so the mandatory hearing provisions were breached and the dismissal was unfair under section 45.
Burden of justifying exceptional circumstances for no hearing
The employer bears the burden of establishing exceptional circumstances preventing a pre-dismissal hearing
The court held that where an employer claims it could not hear the employee before summary dismissal, those circumstances must be clearly set out by the employer. The Respondent's allegation of sneaking back to the premises did not suffice because it later communicated with the Grievant successfully, demonstrating no practical impediment to a hearing existed.
Remedies for unfair termination
Compensation of three months' salary awarded, reduced because the Grievant was under suspension for suspected gross misconduct; notice pay awarded as procedures were not followed
Having found unfair termination, the court awarded compensation but tempered it to three months' salary given that the Grievant did not contest that 120 safari boots soles went missing while he was on duty, and only relied on the absence of a criminal charge. Notice pay followed from the failure to adhere to lawful termination procedures.
Legal principles established
#- The right to summarily dismiss under section 44 is regulated by the mandatory hearing requirement of section 41(2), and failure to hear the employee renders summary dismissal unfair under section 45
- Where an employer is unable to hear the employee before summary dismissal, the exceptional circumstances must be clearly set out by the employer
- A certificate of service is a statutory right that must be issued as of right and not await litigation
Court orders
#- 1.Declaration that the termination of the Grievant by the Respondent was procedurally unfair
- 2.Compensation awarded at Kshs.30,108.00
- 3.Notice pay of Kshs.10,036.00
- 4.Certificate of Service to be issued unconditionally
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act over unfair termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shoe & Leather Workers Union v HR Strategic Partners Ltd [2016] KEELRC 597 (KLR)", Case Analysis (2016). Cause No. 2490 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/597/eng@2016-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.