Anthony Okoth Osure v Napro Industries Limited [2016] KEELRC 1236 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi

31 March 2016

MMM. Mbaru

2,025 words in judgment

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The bottom line

Kenya's Employment Court confirmed that even employees dismissed for theft must get a hearing first, though badly-behaved workers get limited compensation.

What this practically means

Executive summary

The Claimant, employed by the Respondent as a Mechanic on annual contracts from 2008 at Kshs.29,500 per month, was arrested on 8th February 2014 over alleged siphoning of oil at the Respondent's premises and was thereafter verbally dismissed, the Respondent alleging theft justified summary dismissal. He claimed salaries from February to June 2014, six years' annual leave, notice pay, house allowance, 12 months' compensation, damages for humiliating and degrading treatment, and WIBA compensation for a 2009 injury in which he lost two fingers. The Respondent defended the dismissal as summary dismissal for theft under a contract clause permitting dismissal without warning, and asserted that leave and house allowance were paid. The Court held that annual contracts existed but that a contractual summary dismissal clause cannot override the mandatory procedural fairness requirements of section 41 of the Employment Act; since the Respondent gave no hearing and issued no notice of summary dismissal, the dismissal was procedurally unfair under section 45. On remedies, the Court declined salaries for the period not worked save for 8 days in February 2014, awarded 28 days' leave and one month's notice pay, and refused section 49 compensation in light of the Claimant's prior warnings and conduct under section 45(5). The house allowance claim failed as salary was inclusive of it; the humiliation claim failed for want of evidence; and the 2009 WIBA claim was time barred under section 90. Judgment was entered for notice pay, leave and 8 days' salary, with 50% costs to the Claimant.

Key legal issues

Procedural fairness in summary dismissal for gross misconduct

Holding

The dismissal was unprocedural because the Respondent gave the Claimant no hearing and there was no record of a notice of summary dismissal; the verbal dismissal on 8th February 2014 was unfair.

Reasoning

Sections 8 and 10 of the Employment Act require written contracts, but even where a contract clause provides for summary dismissal, it must yield to section 41(2), which mandates calling the employee to a hearing before dismissal. The Respondent did not plead that the Claimant was given a hearing; after his arrest he never reported back to work and there was no notice of summary dismissal. The Court believed the Claimant's account of a verbal dismissal. Failure to adhere to section 41 renders dismissal unfair under section 45.

p. 3

Quantum of remedies where dismissal is unfair but employee's conduct is blameworthy

Holding

Notice pay, accrued leave and salary for days worked were awarded; section 49 compensation was refused because the Court was required to consider the Claimant's prior warnings and conduct.

Reasoning

Under section 49 compensation is discretionary, and section 45(5) requires the Court to consider the employee's conduct and record. The last warning to the Claimant was issued on 10th May 2013 within the current contract, and each annual contract started a fresh relationship. Weighing the Claimant's conduct against the unfair procedure, the Court declined any compensatory award but granted notice pay, 28 days' leave and 8 days' salary.

p. 3

Limitation of work injury benefit claims

Holding

The WIBA claim arising from the 18th May 2009 injury was time barred and could not be entertained.

Reasoning

The injury occurred in 2009 and such claims are regulated under section 90 of the Employment Act, requiring filing within 3 years. The claim should have been filed before the subordinate court or, if filed in this Court, within the statutory period running from 18th May 2009. The claim was therefore time barred for the Court to address.

p. 4

Legal principles established

Procedural fairness requirements under section 41 of the Employment Act are mandatory even in cases of gross misconduct justifying summary dismissal.
Failure to adhere to section 41 renders any resulting termination or dismissal procedurally unfair under section 45 of the Employment Act.
Where an employer fails to submit records of leave taken, the gap can only be applied to the advantage of the claimant.
The right to terminate an employee is no longer unrestricted; section 41 creates a safeguard ensuring natural justice at the shop floor.

Court orders

1.Judgment entered for the Claimant for notice pay at Kshs.29,500.00
2.Leave due awarded at Kshs.29,500.00
3.Salary due for 8 days in February 2014 awarded at Kshs.7,870.00
4.The Claimant awarded 50% of his costs

Authorities

Legislation

Employment Actsections 8, 10, 41, 41(2), 44, 45, 45(5), 49, 90

Cases cited (2)

Kenya Union of Commercial Food and Allied Workers versus Meru North Farmers Sacco Limited
[2014] eKLR
Henry Ondari versus Top Security Systems Limited
Cause No.572 of 2011

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (industrial cause filed under Cause No.1563 of 2014)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Anthony Okoth Osure v Napro Industries Limited [2016] KEELRC 1236 (KLR)", Case Analysis (2016). Cause No. 1563 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1236/eng@2016-03-31

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