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ELRCAllowedNot stated in the judgment as provided· [2016] KEELRC 1036 (KLR)

Moses Njenga v Beshmon Limited [2016] KEELRC 1036 (KLR)

Employment and Labour Relations Court
17 June 2016
770 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

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A Kenyan court ruled a security guard's dismissal unfair because his employer never gave him a hearing or a termination letter.

What this practically means

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Executive summary

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The claimant, employed as a security officer on 9th February 2012 at a monthly salary of Kshs.11,000/=, was suspended for one week without pay on 3rd July 2013 on allegations that he entertained stampers and passersby during working hours, endangering the security of the respondent's premises. He denied the allegations and denied receiving any warning or show cause letter. The respondent contended that it issued a show cause letter which went unanswered, invited the claimant to a meeting which he did not attend, and issued an internal memo warning him before suspending him. In evidence, the respondent's witness conceded that no disciplinary hearing was conducted and that no termination letter was issued. The court held that although neglect of duty could have been a valid reason for dismissal, the process must be carried out through a fair procedure; the claimant was neither afforded a hearing nor issued with a termination letter, contrary to sections 41 and 45 of the Employment Act, rendering the termination unfair. The court awarded the claimant Kshs.1,100.00 for three days worked in July, Kshs.11,000.00 in lieu of leave, Kshs.11,000.00 in lieu of notice, and Kshs.66,000.00 as six months' salary compensation for unfair dismissal, totaling Kshs.89,100.00, plus a certificate of service and costs of the suit.

Key legal issues

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01

Whether the claimant was afforded a fair disciplinary procedure before termination

Holding

The termination was unfair because the claimant was neither given a hearing nor issued with a termination letter, contrary to sections 41 and 45 of the Employment Act.

Reasoning

Although the respondent alleged that the claimant neglected his duty by entertaining strangers and leaving his work station unmanned, the court found that the respondent conceded no meeting was ever called to discuss the claimant's conduct or allow him to defend himself alone or through a representative. The claimant was also never issued with a termination letter. The absence of both a hearing and a termination letter breached the procedural requirements of the Employment Act, rendering the dismissal unfair irrespective of the merits of the allegations.

p. 2
02

Whether the allegations against the claimant constituted a valid reason for dismissal

Holding

Neglect of duty could have been a good reason for dismissal, but the unfair procedure defeated the dismissal.

Reasoning

The court accepted arguendo that neglect of duty, as alleged - entertaining stampers and passersby and leaving the gate unmanned - may well have justified dismissal. However, because the process must be carried out through a fair procedure and the claimant was denied a hearing, the dismissal could not stand. The court thus separated the substantive reason from the procedural fairness requirement, in line with sections 41 and 45 of the Employment Act.

p. 2

Legal principles established

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  • A termination of employment that does not conform to the Employment Act as to reasons and procedure is wrongful and/or unfair.
  • Even where there is a valid reason for dismissal, the dismissal must still be carried out through a fair procedure, including an opportunity to be heard under section 41 of the Employment Act.

Court orders

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  1. 1.Award of Kshs.1,100.00 being salary for 3 days worked in July
  2. 2.Award of Kshs.11,000.00 being one month's pay in lieu of leave
  3. 3.Award of Kshs.11,000.00 being one month's pay in lieu of notice
  4. 4.Award of Kshs.66,000.00 being six months' salary as compensation for unfair dismissal (total award Kshs.89,100.00)
  5. 5.Issuance of a certificate of service to the claimant
  6. 6.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Actsections 41 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (specific provision not stated in the judgment)

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, "Moses Njenga v Beshmon Limited [2016] KEELRC 1036 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1036/eng@2016-06-17

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