Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries v Highlands Paper Mills Ltd [2016] KEELRC 855 (KLR)
The bottom line
#A Kenyan court ruled a written show-cause notice can satisfy the legal requirement for a fair hearing before dismissal if the employee refuses to participate.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal under section 41 of the Employment Act
The Respondent substantially complied with section 41; the Grievant was informed of the allegations in a show cause notice and given 48 hours to respond but refused to accept the notice or cooperate, so he cannot claim he was denied a hearing.
The show cause notice dated 7 April 2013 set out the allegations clearly and requested representations within 48 hours, consistent with clause 17(c) of the CBA. The Grievant admitted knowing the allegations and making representations but did not disclose before whom. The Court held an oral hearing is not mandatory, and that refusing a show cause notice and snubbing the opportunity to respond constitutes non-cooperation with the employer, justifying suspension and Board resolution to dismiss.
Applicability of sections 41(1) and 43 to summary dismissal
The Respondent's submission that these sections do not apply to summary dismissal was misplaced; section 41(2) subjects summary dismissal to procedural fairness.
The Court rejected the argument that statutory procedural fairness is inapplicable to summary dismissals, holding that section 41(2) expressly makes summary dismissals for misconduct, poor performance and physical incapacity subject to the fairness safeguards in section 41(1).
Remedies for the Grievant
Only wages for days worked up to 30 April 2013 were awarded; notice pay, leave, overtime, service pay and compensation were declined.
Because the dismissal was found fair, notice pay and compensation were legally unavailable. Leave and overtime claims lacked evidential foundation and had in any event been paid per the dismissal letter. Service pay was declined as the Court was not addressed on its availability. However, wages earned up to the dismissal date were payable as of right, quantified at the unchallenged rate of Kshs 12,338/-.
Legal principles established
#- The hearing contemplated by section 41 of the Employment Act, 2007 need not be oral; it may be conducted through correspondence or a combination of oral and written means.
- Summary dismissals on account of misconduct, poor performance and physical incapacity are subject to the procedural fairness requirements of section 41(1) of the Employment Act, 2007.
- An employee is under a common law obligation to cooperate with an employer even during disciplinary proceedings.
Court orders
#- 1.Finding that the summary dismissal of the Grievant was fair and dismissal of the cause of action founded on wrongful dismissal
- 2.Award of April 2013 wages (days worked) of Kshs 12,388/- to the Grievant
- 3.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance labour dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries v Highlands Paper Mills Ltd [2016] KEELRC 855 (KLR)", Case Analysis (2016). Cause number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/855/eng@2016-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.