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ELRCPartially AllowedCause No 921 of 2014· [2017] KEELRC 1667 (KLR)

Bernard Otieno v DHL Exel Supply Chain (K) Limited [2017] KEELRC 1667 (KLR)

Employment and Labour Relations Court
10 March 2017
LNLINNET NDOLO
1,160 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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DHL was ordered to pay a former clerk ten months' salary after a Kenyan court found his firing unfair, dismissing a signed discharge voucher as a defence.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Receiving Clerk on periodic contracts from 2009 and on a one-year contract from January 2014 at a monthly salary of Kshs. 27,031, sued for unlawful termination of employment. His employment was terminated by letter dated 19th March 2014 following a show cause letter alleging theft of customer consignments of sunlight soap, in which he was said to have been implicated by one Geoffrey Mosigisi Cardinal. The Respondent maintained that the Claimant was given a fair hearing and signed a discharge voucher upon payment of his dues. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to the remedies sought. The Court found the termination letter stated no reason, the allegations rested on an accuser who was not called as a witness, and no valid reason was established under Section 43 of the Employment Act. Further, no disciplinary process under Section 41 was proved, rendering the termination both substantively and procedurally unfair. Following Rika J in Naqvi Syed Qmar v Paramount Bank Limited, the Court held the employer bears the burden of justifying both the reason and the procedure. The Court rejected the discharge voucher as a defence, holding an employer cannot hide behind a disclaimer signed by an employee. The claims for salary for the unexpired contract period and general damages were dismissed for lack of basis. The Court awarded ten months' salary, Kshs. 270,310, with interest at court rates from the date of judgment, plus costs to the Claimant.

Key legal issues

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01

Whether the Respondent established a valid reason for terminating the Claimant's employment

Holding

The Respondent failed to establish a valid reason; the allegations rested on an accuser who was not called as a witness and could not be verified

Reasoning

The termination letter stated no reason. The allegations of theft traced to one Geoffrey Mosigisi Cardinal, who was neither confronted to the Claimant in a disciplinary setting nor called as a witness, so the Court could not verify the allegations. Without proof, the employer failed the substantive fairness test under Section 43 of the Employment Act.

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02

Whether the Claimant was accorded a fair procedure before termination

Holding

The termination was procedurally unfair as the mandatory disciplinary procedure under Section 41 of the Employment Act was not followed

Reasoning

Apart from a show cause letter that set out no particular charges, there was no evidence of any disciplinary hearing. The Respondent's own Security Officer could not prove such a process. Section 41 of the Employment Act requires a fair procedure, and its omission rendered the termination procedurally unfair.

p. 3
03

Whether the discharge voucher signed by the Claimant barred his claims

Holding

No - an employer cannot hide behind a discharge or disclaimer signed by an employee to escape lawful obligations

Reasoning

The Court held the law settled that an employer cannot escape lawful obligation by relying on a discharge signed by the employee, citing Simon Muguku Gichigi v Taifa SACCO Limited and Charles Nyangi Nyamohanga v Action Aid International. The voucher therefore did not defeat the Claimant's claim for compensation.

p. 3

Legal principles established

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  • An employer must demonstrate a valid reason for terminating employment notwithstanding a contractual notice provision
  • Sections 41, 43 and 45 of the Employment Act place a burden on the employer to justify both the reason and the fairness of the procedure leading to termination
  • An employer cannot escape lawful obligations to an employee by relying on a discharge or disclaimer signed by the employee

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 270,310 being ten (10) months' salary in compensation for unfair termination of employment
  2. 2.Interest at court rates from the date of Judgment until payment in full
  3. 3.The claims for salary for the unexpired period of the contract and general damages dismissed
  4. 4.The Claimant awarded the costs of the case

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 35(1)(b), 41(1), 41(2)(a) and (b), 47(1)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45

Cases cited (3)

  • Naqvi Syed Qmar v Paramount Bank Limited & another
    [2015] eKLR
  • Simon Muguku Gichigi v Taifa SACCO Limited
    [2012] eKLR
  • Charles Nyangi Nyamohanga v Action Aid International
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43 and 45 invoked)

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, "Bernard Otieno v DHL Exel Supply Chain (K) Limited [2017] KEELRC 1667 (KLR)", Case Analysis (2017). Cause No 921 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1667/eng@2017-03-10

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