Dickson Matingi v Db Schenker Limited [2016] KEELRC 976 (KLR)
The bottom line
#A Kenyan court ruled DB Schenker wrongly dismissed an employee for desertion, awarding him Kshs.740,256 because the employer proved nothing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty
The Respondent failed to prove desertion; the defence was rejected
The Court adopted the Seabolo test distinguishing desertion from absence without leave, requiring proof of intention not to return, and Radido J's holding that the employer must show attempts to trace the employee. The Respondent merely asserted desertion without evidence, so the defence failed.
Whether the dismissal was lawful and fair
The dismissal was wrongful for want of substantive justification and procedural fairness
The dismissal letter disclosed two reasons - theft allegations and desertion - neither proved in a lawful disciplinary process. Section 43 substantive justification and Section 41 procedural fairness under the Employment Act were not met, rendering the summary dismissal unlawful.
Whether the Claimant was a casual employee before 1st November 2011
The Claimant was a regular employee from 8th October 1999 until dismissal on 20th December 2013
The 1999 appointment letter offered permanent/casual employment with effect from 08/10/1999. No records or terms were produced to show casual status from 1999 to 2011, and the Respondent's HR Manager could not state the period of casual employment, so the assertion was rejected.
What remedies flow from the unlawful dismissal
12 months' salary compensation, one month's notice pay and house allowance for 170 months, totalling Kshs.740,256.00
Compensation was assessed at 12 months taking into account length of service and the Respondent's conduct. Notice pay followed from the declaration of unlawfulness. House allowance was contractually provided at Kshs.3,000 but omitted from payslips, so the claim succeeded. Severance pay failed for want of basis.
Legal principles established
#- Desertion is a form of gross misconduct which must be proved; an employer must demonstrate attempts to establish the whereabouts of the employee before dismissing for desertion
- Pendency of criminal proceedings does not bar an employer's internal disciplinary action, but an employer must still have solid grounds established on a balance of probability
Court orders
#- 1.Declaration that the summary dismissal was unprocedural and improper (wrongful for want of substantive justification and procedural fairness)
- 2.Award of 12 months' salary in compensation of Kshs.212,544.00
- 3.One month's salary in lieu of notice of Kshs.17,712.00
- 4.House allowance for 170 months at Kshs.3,000 per month totalling Kshs.510,000.00
- 5.Total award of Kshs.740,256.00 with interest at court rates from date of award until payment in full
- 6.Respondent to meet the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute over summary dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Matingi v Db Schenker Limited [2016] KEELRC 976 (KLR)", Case Analysis (2016). Cause No 1537 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/976/eng@2016-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.