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ELRCPartially AllowedCause No. 107 of 2014· [2016] KEELRC 1741 (KLR)

Erick Juma Odhiambo v Mars Security Guards Ltd [2016] KEELRC 1741 (KLR)

Employment and Labour Relations Court of Kenya
27 January 2016
MMM. Mbaru
2,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that even an employee suspected of theft must get a fair hearing, and dismissed without one, the employer paid 12 months' salary.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from 8th June 2009, was summarily dismissed on 3rd September 2013 following the theft of a metal bar at a client's premises on 27th August 2013. He sought a declaration that his summary dismissal was unlawful, notice pay, leave pay and damages. The respondent maintained that the claimant was implicated in the theft, that he was issued a show cause memo, given a hearing, and dismissed on account of his prior disciplinary record of three warnings for sleeping on duty. The court held that section 41 of the Employment Act requires a hearing before termination even for gross misconduct, and that a valid reason must exist for dismissal. Since the respondent's own investigations had established that a fellow guard, Wilson Oduor, admitted stealing the metal bar and was dismissed for it, there was nothing valid for the claimant to respond to; requiring him to answer the same allegation was punishing the wrong person. The prior warnings could not be applied to his detriment as a reason that lacked basis or legitimacy. The dismissal was found both procedurally and substantively unfair. Notice pay of Kshs.12,714.00 was awarded; the claim for leave pay was declined as 18 days' leave had been paid in final dues; and 12 months' salary compensation of Kshs.177,996.00 was awarded. The claimant was awarded costs.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The summary dismissal was procedurally unfair as the employee was not given a proper hearing under section 41 of the Employment Act

Reasoning

Section 41 is the template for fair labour relations; even where gross misconduct is alleged under section 44, the employee must be given a hearing with a representative present. The respondent required the claimant to respond to an allegation of theft already resolved by the admission and dismissal of the real culprit, leaving nothing for the claimant to answer to. The dismissal was therefore flawed for lack of procedural fairness.

p. 2
02

Substantive justification for dismissal

Holding

There existed no valid and justified reason for the summary dismissal

Reasoning

The reason given - that a metal bar went missing while the claimant was on duty - was contradicted by the respondent's own investigations, which established that a fellow guard, Wilson Oduor, had stolen the metal bar and admitted it. Requiring the claimant to answer for a resolved matter amounted to punishing the wrong person. The prior warnings related to unrelated misconduct and could not supply a reason for this dismissal.

p. 3

Legal principles established

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  • Before termination, an employer must give an employee a hearing in the presence of the employee's representative, even for gross misconduct under section 44
  • Suspension enables investigation; only thereafter does a show cause letter begin the disciplinary process under section 41
  • A prior poor disciplinary record cannot be relied upon as a reason for dismissal where investigations revealed no misconduct by the employee

Court orders

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  1. 1.Judgment entered for the Claimant for Kshs. 12,714.00 as notice pay
  2. 2.Kshs. 177,996.00 awarded as compensation (12 months' salary)
  3. 3.Claim for leave pay declined
  4. 4.Claimant awarded costs of the cause

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 44
  • Court (Procedure) RulesRule 4

Cases cited (3)

  • David Otunga Managi versus The Office of the Controller and Auditor General & Another
    Cause No.933 of 2013
  • Frederick O Owegi versus CFC Life Assurance Ltd
    Cause No.1001 of 2012
  • Amrick Consales versus Mara Ison Technologies Kenya Limited
    Cause No. 2538 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (cause for unfair and wrongful summary dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Erick Juma Odhiambo v Mars Security Guards Ltd [2016] KEELRC 1741 (KLR)", Case Analysis (2016). Cause No. 107 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1741/eng@2016-01-27

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