Swinstone Okumu Wasike & another v General Motors East Africa Limited [2016] KEELRC 1740 (KLR)
The bottom line
#Kenya's Employment Court ruled General Motors unfairly fired two technicians on suspicion alone, without a hearing, and awarded them months of salary in compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was for a valid reason
No - the dismissal was based on mere suspicion, which is not a valid reason under sections 43 and 45 of the Employment Act
The Claimants were dismissed on the basis of an internal investigation linking them to theft of spare parts. They were never formally charged with any disciplinary offence at the workplace and no opportunity was given to them to answer the allegations. The criminal acquittal under section 202 CPC for lack of evidence meant the employer never established guilt. Consequently the employer failed to prove a valid reason on a balance of probabilities.
Whether the termination followed a fair procedure
No - the termination violated section 41(2) of the Employment Act as no show cause letter was issued and no disciplinary hearing was conducted
Section 41(2) of the Employment Act obliges an employer, before summary dismissal on grounds of misconduct, to hear and consider the employee's representations. The Respondent admitted the dismissal was effected without a show cause letter or disciplinary hearing, thereby denying the Claimants any opportunity to be heard. The termination was therefore both substantively and procedurally unfair.
Whether the Claimants were entitled to the reliefs sought
Partially - compensation for wrongful termination was awarded (10 months' salary for the 1st Claimant, 6 months' for the 2nd); claims already settled by the Respondent (notice, leave, personal savings) were disallowed
The court found the Respondent had already paid notice pay, leave pay and refunded personal savings, so those heads failed. Considering the length of service, clean records, loss of livelihood and diminished future employment prospects occasioned by the criminal charge, the court exercised discretion under section 49 of the Employment Act to award 10 months' and 6 months' salary respectively.
Legal principles established
#- An employer must, before summarily dismissing an employee for misconduct, hear and consider the employee's representations; failure to give a show cause letter and hold a disciplinary hearing renders the dismissal procedurally unfair
- Mere suspicion of an employee's involvement in an offence does not constitute a valid reason for termination under sections 43 and 45 of the Employment Act
Court orders
#- 1.1st Claimant awarded 10 months' salary as compensation for wrongful and unlawful termination of employment, being Kshs 831,920.00
- 2.2nd Claimant awarded six (6) months' salary as compensation for wrongful and unlawful termination of employment, being Kshs 267,816.00
- 3.Awards to attract interest at court rates from date of filing suit until payment in full
- 4.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swinstone Okumu Wasike & another v General Motors East Africa Limited [2016] KEELRC 1740 (KLR)", Case Analysis (2016). Cause No. 294 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1740/eng@2016-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.