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ELRCDismissedCause No. 1204 of 2014· [2016] KEELRC 1221 (KLR)

Joseph Onyango Asere v Brookside Dairy Limited [2016] KEELRC 1221 (KLR)

Employment and Labour Relations Court of Kenya
22 April 2016
MMM. Mbaru
1,676 words in judgment
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The bottom line

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Kenya's Employment Court upheld a summary dismissal because the employee admitted getting a hearing, showing that oral, undocumented disciplinary hearings can satisfy the law.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1st March 2001, was summarily dismissed following an incident on 25th February 2014 in which, according to the Respondent, he refused to undertake duties of shrink-wrapping allocated by his supervisor Adam Arika Kerosi, sat on his mobile phone, and confronted and threatened to beat up his supervisor. The Claimant alleged he was diligently performing his duties and was dismissed on false allegations of insubordination and gross misconduct, without a show cause letter or a hearing. He sought one month's salary in lieu of notice, compensation of twelve months' salary, and costs. The Respondent's witnesses, including the supervisor and the HRM Grace Munugu, testified that a hearing was convened at 4pm on the day of the incident where the Claimant explained himself, citing domestic problems. The court held that summary dismissal is permissible under section 44(4) of the Employment Act but that the employer must still comply with section 41(2) by hearing the employee's representations. It found the Claimant's sworn evidence confirmed he was given a hearing, though undocumented, and applied the authority of George Musamali v G4S Security Services Kenya Ltd to hold that internal disciplinary proceedings need not resemble court trials. The court found the Claimant not honest, noting he lied about his salary and admitted telling his supervisor to fire him. Considering his dented employment record and a prior warning under section 45(5), the court dismissed the claim in its entirety and ordered each party to bear their own costs.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The Claimant was given a hearing as required under section 41(2) of the Employment Act, though the hearing was not documented, and this was confirmed by the Claimant's own sworn evidence

Reasoning

The court found that although the disciplinary hearing was not documented, the Claimant confirmed in his sworn testimony that he was called for a hearing where he stated his defence. The court accepted that internal disciplinary proceedings need not mirror court proceedings, holding that the requirement is only that the employee be reasonably given a hearing. Both the HRM and the supervisor testified that a hearing was convened at 4pm on 25th February 2014 where the Claimant explained himself.

p. 3
02

Substantive justification for summary dismissal

Holding

The Claimant's refusal to undertake assigned duties, insubordination and threat to his supervisor amounted to gross misconduct justifying summary dismissal under section 44(4) of the Employment Act

Reasoning

The court accepted the Respondent's account that the Claimant refused assigned duties, sat on his phone contrary to workplace rules, confronted and shouted at his supervisor and threatened to beat him up. The court noted the Claimant's admission that he told his supervisor to fire him if he had done anything wrong, and his prior warning letter, and applied section 45(5) of the Employment Act in assessing the fairness of the dismissal.

Legal principles established

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  • Even in cases of gross misconduct justifying summary dismissal under section 44(4) of the Employment Act, the employer must adhere to section 41(2) and hear and consider the employee's representations before dismissal
  • Internal disciplinary proceedings are not court proceedings or criminal trials; the employer need only reasonably give the employee a hearing to present his defence

Court orders

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  1. 1.The claim dated 18th July 2014 is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Employment Actsection 41(2)
  • Employment Actsection 44(4)
  • Employment Actsection 45(5)

Cases cited (1)

  • George Musamali versus G4S Security Services Kenya Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim of unfair dismissal and non-payment of termination benefits (Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Onyango Asere v Brookside Dairy Limited [2016] KEELRC 1221 (KLR)", Case Analysis (2016). Cause No. 1204 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1221/eng@2016-04-22

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