Kenya Union of Commercial,Food and Allied Workers v Water Resource Management Authority & another [2016] KEELRC 1645 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the grievant's employment was wrongful, unfair and unlawful
The termination was lawful. The grievant failed to attend the Kisumu meeting despite notice, refused to report to the National Office on transfer, and admitted making unauthorised payments, all amounting to gross misconduct and insubordination.
The court anchored the determination on four aspects: the Kisumu meeting of 7th January 2009, the grievant's conduct on transfer to the national office, the show cause letter and response, and the letter of termination. Three respondent witnesses corroborated that the grievant knew of the Kisumu meeting. Her own reply to the show cause letter showed she did not honour the transfer because she wanted her complaints resolved first. She admitted paying Kshs.39,397 without authority. The claim that she was asked for a release letter was treated as an afterthought.
Whether the respondent was entitled to its counter-claim of Kshs.39,397
The counter-claim was dismissed. Liability was not unequivocally admitted, and termination was adequate punishment.
The court noted the grievant never unequivocally admitted liability for the amount claimed. Given that she had already suffered termination of employment, ordering repayment would be counter-productive and against good labour relations practice. The claimant's own reliefs dissipated with the adverse finding on the lawfulness of termination, and the court moved directly to the counter-claim issue.
Whether the claimant was entitled to the reliefs sought
The reliefs dissipated with the adverse finding on the lawfulness of the termination; the claim was dismissed in its entirety.
Since the court found the termination lawful, the declaration, reinstatement and alternative monetary reliefs all fell away. The claimant's contention that the grievant was asked for a release letter when reporting to Nairobi was not contradicted by the respondent's witnesses, but the court nonetheless found on the totality of the evidence, including the grievant's own show-cause response, that she absconded and was insubordinate.
Legal principles established
#- An employee who fails to honour a lawful transfer and does not attend a properly convened meeting at which she had notice is guilty of insubordination and abscondment justifying termination.
- Payment of funds without authority, even where not admitted as misappropriation, constitutes gross misconduct under the employer's code of regulations warranting summary dismissal.
Court orders
#- 1.Dismissal of the claimant's claim
- 2.Dismissal of the respondent's counter-claim
- 3.Each party to bear their own costs of the claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair/unlawful dismissal claim under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial,Food and Allied Workers v Water Resource Management Authority & another [2016] KEELRC 1645 (KLR)", Case Analysis (2016). Cause No. 1 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1645/eng@2016-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.