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ELRCPartially AllowedCause Number 341 of 2015· [2016] KEELRC 1639 (KLR)

Jeremiah Ochieng’ Ponde & 3 others v Borderless Tracking Systems Limited [2016] KEELRC 1639 (KLR)

Employment and Labour Relations Court of Kenya
26 February 2016
2,361 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Four Tag Operators employed by Borderless Tracking Systems Limited, a cargo handler securing transit goods under KRA authority, were summarily dismissed between 3rd and 6th November 2014 on suspicion of involvement in fraudulent release of transit goods without tagging. They sued for notice pay, pro-rata leave, public holiday pay, salary for days worked, rest-day pay and 12 months' compensation for unfair termination, totalling Kshs. 1,022,584. The respondent asserted the dismissals were lawful, following suspected malpractices and a CID investigation, and that some dues were withheld pending return of company property. The court found that the employer failed to establish valid reasons under Sections 43 and 45 of the Employment Act 2007: the alleged fraud was never made manifest, no exhibits supported the allegations, and police investigations resulted in no prosecution. Procedurally, no hearing, charges, internal investigation or explanation letters were shown; the respondent's argument that the three days between investigation and termination amounted to a fair hearing was rejected. Termination was thus unfair both substantively and procedurally. Compensation was nonetheless limited to one month's salary per claimant, given only six months of service, three under probation. Claims for pro-rata leave, public holidays, days worked and rest days were allowed uncontradicted, the respondent having produced no attendance records. The court ordered payment of specified sums totalling Kshs. 70,918, Kshs. 72,042, Kshs. 93,358 and Kshs. 70,918 respectively, within 30 days, with each party bearing its own costs.

Key legal issues

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01

Validity of the reason for termination

Holding

The allegation that the Claimants engaged in fraudulent tagging was not established; termination was not based on valid reason

Reasoning

The respondent's witness restated only general suspicions of conspiracy involving agents, claimants and KRA staff. The exact role of the Claimants was never demonstrated, no exhibits such as the Dispatch Book were availed, and police investigations led to no prosecution. The court held mere suspicion, including suspicion from night-duty staff being seen on the premises during the day, could not justify termination.

p. 3
02

Fairness of the termination procedure

Holding

Termination was procedurally unfair; no Section 41 process was demonstrated

Reasoning

The respondent argued the 3 days between the CID investigation and termination constituted a fair hearing. The court rejected this, holding that no letters inviting explanation, no internal investigation or report, no charges and no hearing were shown. Fair procedure cannot be inferred from the passage of time; the statutory process under Section 41 must be evidenced.

p. 4
03

Quantum of compensation and terminal dues

Holding

One month's salary compensation awarded per claimant; claims for pro-rata leave, public holidays, days worked and rest days allowed as prayed

Reasoning

Under Section 49 of the Employment Act and Section 12 of the Employment and Labour Relations Court Act, compensation was limited to one month's salary given the short service of 6 months, 3 of them probationary. Claims on leave, public holidays, days worked and rest days were uncontradicted as the respondent produced no attendance or employment records to the contrary.

p. 4

Legal principles established

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  • The employer bears the burden of proving valid and fair reasons for termination under Sections 43 and 45 of the Employment Act 2007
  • Mere suspicion of misconduct is not a valid reason for termination; suspicion must be shown to be reasonable and valid
  • Fairness of procedure is not measured by the time elapsed between investigation and termination; the Section 41 process must be shown to have taken place
  • An employer may act independently without waiting for the outcome of police investigations, but termination must rest on an internal investigation establishing valid and fair reasons

Court orders

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  1. 1.Declaration that termination of the Claimants was unfair
  2. 2.Respondent to pay each Claimant, within 30 days, notice pay of Kshs. 16,258
  3. 3.Payment of pro-rata leave of Kshs. 5,250 to each Claimant
  4. 4.Payment for 4 public holidays of Kshs. 4,495 to each Claimant
  5. 5.Payment for days worked in November 2014 (Kshs. 1,685 for 1st and 4th Claimants; Kshs. 2,809 for 2nd Claimant; Kshs. 3,371 for 3rd Claimant)
  6. 6.Payment for rest days (Kshs. 26,972 for 1st, 2nd and 4th Claimants; Kshs. 31,468 for 3rd Claimant)
  7. 7.Payment to the 3rd Claimant of salary for October 2014 of Kshs. 16,258
  8. 8.Compensation for unfair termination of 1 month's salary (Kshs. 16,258) to each Claimant
  9. 9.Each party to bear its own costs of the Claim

Authorities

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Legislation

  • Employment ActSections 41, 43, 45, 49
  • Employment and Labour Relations Court ActSection 12
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12; Industrial Court (Procedure) Rules 2010, Rule 27(1)(a)

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, "Jeremiah Ochieng’ Ponde & 3 others v Borderless Tracking Systems Limited [2016] KEELRC 1639 (KLR)", Case Analysis (2016). Cause Number 341 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1639/eng@2016-02-26

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