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ELRCPartially AllowedCause No. 26 of 2012· [2016] KEELRC 1591 (KLR)

Benjamin Anaya Isaya v Bob Morgan Services Limited [2016] KEELRC 1591 (KLR)

Employment and Labour Relations Court
25 February 2016
HWHellen S. Wasilwa
901 words in judgment
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The bottom line

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A Kenyan court ruled that even employees dismissed for drunkenness must get a hearing first, and awarded the guard 12 months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Security Guard from 13th January 1998, claimed he was unlawfully and maliciously terminated. He averred that on 7th September 2009 he was asked to accompany the Respondent's control vehicle occupants to the office, worked through the night and was assigned duties as usual thereafter, only to discover on 16th September 2009 that he had been sacked on 7th September 2009 for being drunk at work. He denied ever consuming alcohol, contending his religion forbade it, and asserted he was given no hearing, no notice and no dismissal letter until 18th September 2009. He sought terminal dues and compensation totalling Kshs.332,460/=. The Respondent maintained that he was summarily dismissed on 17th September 2009 for reporting to work while intoxicated, relying on Section 44(4)(b) of the Employment Act, and that prior warnings had been issued, overtime allowance paid, and a Kshs.3,500 uniform deposit made. The court found the Respondent's account inconsistent, noting the dismissal letter was dated 10.9.2009 despite the pleaded dismissal date, and that the Claimant continued working after the alleged dismissal. Applying natural justice, the court held that summary dismissal under Section 44(4) required even a minimal hearing. The dismissal was found unfair and unlawful. The court awarded 12 months' salary as compensation (Kshs.143,040/=) plus one month's salary in lieu of notice (Kshs.11,920/=), rejecting other prayers because the Claimant was an NSSF contributor, had been paid the uniform deposit, granted leave, and paid overtime per payslips. The Respondent was ordered to pay costs of the suit.

Key legal issues

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01

Fairness of summary dismissal for alleged drunkenness

Holding

The dismissal was unfair and unlawful because the Respondent allowed the Claimant to continue working after the alleged dismissal, gave no notice and no hearing

Reasoning

The court found inconsistencies in the Respondent's account: the pleadings alleged dismissal on 17th September 2009 yet the dismissal letter was dated 10.9.2009, and the Claimant worked after the alleged termination. The lack of hearing rendered the summary dismissal unfair notwithstanding Section 44(4)(b) of the Employment Act, since natural justice requires even a minimal hearing.

p. 2

Legal principles established

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  • Summary dismissal for intoxication under Section 44(4) of the Employment Act still requires at least a minimal hearing; condemning a person unheard offends natural justice

Court orders

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  1. 1.Payment of 12 months' salary as compensation for unlawful dismissal (Kshs.143,040/=)
  2. 2.Payment of one month's salary in lieu of notice (Kshs.11,920/=)
  3. 3.Respondents to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 44(4)(b)
  • Employment ActSection 44(4)(d)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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 Anaya Isaya v Bob Morgan Services Limited [2016] KEELRC 1591 (KLR)", Case Analysis (2016). Cause No. 26 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1591/eng@2016-02-25

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