Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 131 of 2014· [2016] KEELRC 831 (KLR)

Brown Tom Achanga v Jiangxi Zhongmei Engineering Construction Ltd [2016] KEELRC 831 (KLR)

Employment and Labour Relations Court
23 June 2016
MOMaureen Onyango
793 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

An employer must prove an employee was actually invited and heard before dismissal, or the termination is procedurally unfair in Kenya.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a Plant Mechanic from 1st November, 2012, was summarily dismissed on 20th May, 2014 on allegations that he colluded with drivers to syphon diesel and took bribes. He claimed he was never heard and never issued with a dismissal letter; the Respondent asserted he was invited to a disciplinary hearing but failed to attend. The court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the reliefs sought. On substance, the drivers' letter complaining of the weekly Shs.600 charges was held to be a sufficient ground for discipline under section 43 of the Employment Act. On procedure, although a letter dated 17th May, 2014 inviting the Claimant to a hearing on 19th May, 2014 was on record, the Respondent's witness was on leave when the termination occurred and could not confirm delivery, no delivery confirmation was produced, and the unchallenged evidence was that letters were delivered through a delivery book. The Respondent therefore failed to demonstrate the Claimant was heard, and the dismissal was held procedurally unfair. Remedies: Shs.13,680 salary for days worked, Shs.14,720 overtime (both uncontested), and one month's salary of Shs.34,000 as compensation under section 49, given his one and a half years of service. The claim for payment up to retirement age failed for want of evidence of a contractual retirement age. The Claimant was awarded 50% of costs. Judgment delivered on 23rd June, 2016 by Maureen Onyango, J.

Key legal issues

#
01

Substantive fairness of the termination

Holding

The complaints from drivers about the Claimant charging them Shs.600 per week was sufficient ground to discipline the Claimant under section 43 of the Employment Act

Reasoning

The court found the drivers' letter complaining that the Claimant charged them Shs.600 per week to ensure repair of their vehicles was sufficient ground for the Respondent to discipline him in line with section 43 of the Employment Act, which provides for valid reasons for termination.

p. 1
02

Procedural fairness of the termination

Holding

The Respondent failed to demonstrate that the Claimant was given an opportunity to be heard, rendering the dismissal procedurally unfair

Reasoning

Although the Respondent annexed a letter dated 17th May, 2014 inviting the Claimant to a disciplinary hearing, the Respondent's witness was on leave at the time and could not confirm delivery; no delivery confirmation was produced, the delivery-book evidence was unchallenged, and the intermediary said to have delivered the letter was not named.

p. 2
03

Remedies for unfair termination

Holding

Taking into account the Claimant's one and a half years of service, one month's salary was awarded as compensation under section 49

Reasoning

Having found unfair termination, the court applied section 49 of the Employment Act, which permits compensation up to a maximum of 12 months' salary, reinstatement or re-engagement. Considering the short service period of one and a half years, one month's salary at the uncontested rate of Shs.34,000 was awarded, along with uncontested arrears of salary and overtime.

p. 2

Legal principles established

#
  • An employer must demonstrate that an employee was given an opportunity to be heard before termination; where service of a notice to attend a disciplinary hearing is not proved, the dismissal is procedurally unfair
  • There is a presumption of law that all contracts of employment are terminable by notice or for misconduct; claims for payment up to retirement age require proof of a contractual retirement age

Court orders

#
  1. 1.Award of Shs.13,680 being salary for days worked up to 19th May, 2014
  2. 2.Award of Shs.14,720 as overtime pay
  3. 3.Award of one month's salary of Shs.34,000 as compensation for unfair termination under section 49 of the Employment Act
  4. 4.Award to the Claimant of 50% of costs

Authorities

#

Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 35
  • Employment Actsection 44
  • Employment Actsection 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Brown Tom Achanga v Jiangxi Zhongmei Engineering Construction Ltd [2016] KEELRC 831 (KLR)", Case Analysis (2016). Cause No. 131 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/831/eng@2016-06-23

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