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ELRCPartially AllowedCause No. 25 of 2015· [2016] KEELRC 762 (KLR)

John Okello Obango v C M C Motors Group Limited [2016] KEELRC 762 (KLR)

Employment and Labour Relations Court
14 July 2016
MOMaureen Onyango
1,731 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 ruled C.M.C. Motors unfairly sacked a spray painter, awarding him 10 months' salary because the employer had no proof or fair process.

What this practically means

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Executive summary

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The Claimant, a spray painter employed by the Respondent at its Eldoret Branch from 2007, was arrested on 25th June 2014 by contracted KK Security guards while leaving work with a 500ml bottle of turpentine (thinner) without a gate pass. He was detained overnight at a police station, released without charge after paying cash bail, and made to report daily for two weeks. His employment was terminated by letter dated 15th July 2014, effective 17th July 2014, on grounds of breach of honesty and integrity. He was paid terminal dues of Shs.316,996.28, which was applied to loans and statutory deductions. The Claimant testified that he had purchased the thinner himself during lunch break to remove ink from his child's uniform and produced a cash sale receipt at a disciplinary hearing in Nairobi whose details were not disclosed. The court framed two issues: whether the termination was fair and whether the Claimant was entitled to the prayers sought. It found the disciplinary process procedurally flawed - no invitation letter, no record of proceedings, union not involved, termination letter issued to the shop steward - and no valid reason proved, since the purchase receipt was ignored, ownership of the thinner was not established, and the thinner found differed from that used by the workshop. The termination was declared unfair both procedurally and substantively. Claims for amounts already paid were dismissed, but compensation of 10 months' gross salary (Shs.439,979.70) was awarded, with costs to the Claimant and interest at court rates unless paid within 30 days.

Key legal issues

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01

Procedural fairness of termination

Holding

Termination was procedurally unfair as the disciplinary process was not documented and the union was not involved as required by the CBA and Employment Act

Reasoning

The court found no letter inviting the Claimant to the disciplinary meeting, no record of who attended or what transpired, and the termination letter made no reference to a disciplinary hearing. Union letters stated the Respondent did not comply with the CBA and Employment Act procedure and that the termination letter was issued to the shop steward rather than the Claimant personally.

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02

Valid reason for termination (substantive fairness)

Holding

No valid reason for termination was proved under sections 43 and 45 of the Employment Act

Reasoning

The termination letter alleged theft of company thinner, but no mention was made of the purchase receipt the Claimant produced, it was not established the thinner belonged to the Respondent, the uncontested evidence was that the thinner found (high gloss) differed from that used by the company (slow thinner), and no charges were pressed despite the overnight detention.

p. 4
03

Compensation for unfair termination

Holding

Compensation equivalent to 10 months gross salary awarded under section 49 considerations

Reasoning

Taking into account the length of service, the circumstances of dismissal and other relevant circumstances, the court considered 10 months gross salary reasonable compensation. Claims for amounts already paid (gratuity, leave, notice pay, salary up to termination) were dismissed.

p. 4

Legal principles established

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  • An employer must both follow fair procedure under section 41 and prove valid reasons for termination under section 43 of the Employment Act
  • Where a disciplinary process is undocumented - no invitation letter, no record of attendees or proceedings - fair procedure is not established

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair both procedurally and substantively
  2. 2.Award of compensation equivalent to 10 months gross salary (Shs.43,997.97 x 10 = Shs.439,979.70)
  3. 3.Respondent to pay the Claimant's costs of the case
  4. 4.Decretal sum to attract interest at court rates unless paid within 30 days from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSections 45(1), (2) and (4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (ss. 41, 43, 45) over unfair termination claim

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, "John Okello Obango v C M C Motors Group Limited [2016] KEELRC 762 (KLR)", Case Analysis (2016). Cause No. 25 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/762/eng@2016-07-14

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