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ELRCPartially AllowedCauses No. 1267 of 2013, 1274 of 2013, 1275 of 2013, 1340 of 2013 and 1884 of 2013 (Consolidated under Cause No. 1267 of 2013)· [2016] KEELRC 1308 (KLR)

Benjamin Mwendwa Ndauti & 4 others v East African Portland Cement Company [2016] KEELRC 1308 (KLR)

Employment and Labour Relations Court
18 April 2016
HWHellen S. Wasilwa
7,683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled cement workers were unfairly dismissed because their employer gave only two days' notice and skipped its own promised investigations.

What this practically means

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Executive summary

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Five former employees of East African Portland Cement Company (Benjamin Mwendwa Ndauti, Ibrahim Mugo, Evans Abuga, Desmond Owiono Oningu and Felix Vunga Munga Mulwa) brought consolidated claims challenging their summary dismissals in May 2013 on allegations of involvement in fraudulent activities. Each sought a declaration that the termination was unlawful, reinstatement, or in the alternative, substitution of the dismissal with interdiction or suspension pending determination of pending Mavoko criminal cases, plus damages of twelve (or in one case twenty-six) months' salary and costs. The Respondent maintained that the dismissals followed its HR Policy Manual, that the Claimants were given opportunity to respond and were heard, and that fraud justified summary dismissal. The Court framed three issues: valid reasons, fair hearing, and remedies. It held that for Nduati, Abuga and Oningu there were no valid reasons, as the disciplinary committee itself had found inadequate evidence and recommended further investigations and dismissal only upon charge, none of which occurred. It found the hearing procedurally unfair for all: two days' notice was inadequate (seven days being reasonable in the Court's view), charges and supporting evidence were not supplied, and the right to be accompanied was not observed, contrary to Section 41 of the Employment Act, Article 50(2) of the Constitution and the Respondent's own HR Manual. All dismissals were declared unfair under Section 45. The Court converted the dismissals of the four Claimants facing criminal charges to suspension pending those cases; for Felix Vunga, whose contract had expired, it awarded one month's notice pay, leave dues, contractual gratuity and three months' salary as damages. The Respondent was ordered to pay costs.

Key legal issues

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01

Whether there were valid reasons to dismiss the Claimants

Holding

For Benjamin Nduati, Evans Abuga and Desmond Oningu, no valid reasons were established as the disciplinary committee found insufficient evidence, recommended further investigations and dismissal only if charged, none of which occurred before their dismissal. For Ibrahim Mugo and Felix Vunga, the reasons, if established, were valid grounds for summary dismissal under Section 44 of the Employment Act.

Reasoning

The disciplinary committee's own recommendations for the trio (Nduati, Abuga, Oningu) stated that more information was required and that dismissal should follow only if they were charged in court. The employer produced no evidence of further investigations and dismissed them before any charge. For Mugo and Mulwa, the charges were tabled and they were heard, and the alleged fraud constituted gross misconduct under Section 44.

p. 13
02

Whether the Claimants were given a fair hearing

Holding

The hearing was procedurally unfair: the Claimants were given only two days' notice, were not supplied with details of the charges or supporting evidence, and were not informed of their right to be accompanied, contrary to Section 41 of the Employment Act, the Respondent's HR Manual and fair trial standards under Article 50(2) of the Constitution.

Reasoning

The invitation letters did not annex details of the offences. The Court held that reasonable time would be at least seven days and should include details of the charges. The Respondent's own HR Manual (Clause 12.5(b)) required advance notice of allegations with supporting evidence, which was not complied with. The Court analogised to Article 50(2) rights to be informed of the charge with sufficient detail and to have adequate time and facilities to prepare a defence.

p. 14
03

What remedies to award

Holding

The Court converted the dismissals of the four Claimants still facing criminal charges to suspension pending determination of the criminal cases at Mavoko Law Courts, and for Felix Vunga, whose fixed-term contract had expired, awarded notice pay, leave dues, contractual gratuity and three months' salary as damages for unfair termination, plus costs.

Reasoning

Given that the Claimants were facing criminal charges at Mavoko Law Courts, the Court found suspension the appropriate remedy as provided under Article 12.10 of the Respondent's HR Policy Manual. For Vunga on a contract expiring in 2015, reinstatement was impossible, so monetary remedies equivalent to a limited award were granted instead of the 26 months claimed.

p. 15

Legal principles established

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  • An employer must accord an employee reasonable time (at least seven days) and details of the charges before a disciplinary hearing, per Section 41 of the Employment Act and the employer's own HR Manual
  • Dismissal is unfair under Section 45 of the Employment Act where due procedure is not followed and, in some cases, where reasons are inadequate
  • Where the disciplinary committee itself found inadequate evidence and recommended further investigations and dismissal only upon charge, dismissal before charge and without those investigations is without valid reason

Court orders

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  1. 1.A declaration that the dismissal of the Claimants was unfair
  2. 2.Conversion of the dismissal of the Claimants (Benjamin Nduati, Evans Abuga, Desmond Oningu, Ibrahim Mugo) to suspension pending hearing and determination of the criminal case at Mavoko Law Courts
  3. 3.For Felix Vunga (on expired contract): payment of one month's salary in lieu of notice (Kshs. 35,000), any leave days due, gratuity under the contract, and 3 months' salary as damages for unfair termination (Kshs. 105,000)
  4. 4.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Part VI (procedure for termination and dismissal)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 45
  • Constitution of Kenya, 2010Article 50(2)

Cases cited (4)

  • Banking Insurance & Finance Union (Kenya) v Co-operative Bank of Kenya Ltd
    [2015] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Part VI, Sections 41, 43, 44 and 45)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Benjamin Mwendwa Ndauti & 4 others v East African Portland Cement Company [2016] KEELRC 1308 (KLR)", Case Analysis (2016). Causes No. 1267 of 2013, 1274 of 2013, 1275 of 2013, 1340 of 2013 and 1884 of 2013 (Consolidated under Cause No. 1267 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1308/eng@2016-04-18

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