Charles Oduor Mirimo v Gilani’s Supermarket Limited [2017] KEELRC 1926 (KLR)

Employment and Labour Relations Court

20 January 2017

RSRadido Stephen

861 words in judgment

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The bottom line

What this practically means

Executive summary

The Claimant alleged unfair termination of his employment on 4 August 2014; the Respondent maintained the dismissal was lawful following allegations that the Claimant carried unauthorised goods, including stolen goods, on a delivery trip to Busia and shared the proceeds. The Claimant testified on his own behalf while the Respondent called its Human Resources Manager. The court collapsed the issues into whether the dismissal was unfair and what remedies were appropriate. On procedure, the court held that sections 35 and 41 of the Employment Act, 2007 require written notification, notice of allegations and an opportunity to make representations, and that the section 41 process may be by correspondence, oral hearing or both. It found the Claimant's three recorded statements were investigatory only, and the Respondent adduced no evidence that a Disciplinary Committee actually heard the Claimant - no date, membership, venue or minutes - so both contractual and statutory procedural fairness were breached. On substance, however, the Claimant's admissions and plea for forgiveness meant the Respondent had valid and fair reasons to dismiss. The court awarded compensation of six months' gross wages (Kshs 61,200/-, based on the proved wage of Kshs 10,200/-) and one month's pay in lieu of notice (Kshs 10,200/-), totalling Kshs 71,400/-. Claims for July 2014 wages and 2013 leave were refused as already paid, and the Respondent was ordered to issue a certificate of service within 14 days. The Claimant was awarded costs. Judgment delivered in Nakuru on 20 January 2017 by Radido Stephen, Judge.

Key legal issues

Procedural fairness of the dismissal

Holding

Dismissal was procedurally unfair; the investigations did not amount to a disciplinary hearing.

Reasoning

The Claimant's statements were investigatory only. The Respondent gave no evidence of when the Disciplinary Committee met, its membership or venue, and produced no minutes, failing both contractual and statutory procedural fairness requirements under sections 35 and 41 of the Employment Act.

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Substantive fairness of the dismissal

Holding

Respondent had valid and fair reasons to dismiss.

Reasoning

The Claimant admitted in his recorded statements the substance of allegations of carrying unauthorised and stolen goods and sharing proceeds, and sought forgiveness; sections 43 and 45 place the burden on the employer, which was discharged on this head.

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Remedies

Holding

Six months' gross wages compensation and one month pay in lieu of notice awarded; other heads refused.

Reasoning

Compensation tailored to the procedural unfairness and the Claimant's approximately 18 years of service, using the proved gross wage of Kshs 10,200/- per the 10 May 2012 contract. July 2014 wages and 2013 leave were shown paid, and a certificate of service is a statutory entitlement.

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Legal principles established

An employer must comply with sections 35 and 41 of the Employment Act: written notification, informing the employee of allegations and allowing representations.
The section 41 process can be by correspondence, oral hearing or both.
Under sections 43 and 45 the employer bears the burden of proving valid and fair reasons for termination.

Court orders

1.Respondent to pay compensation equivalent of 6 months gross wages (Kshs 61,200/-)
2.Respondent to pay 1 month pay in lieu of notice (Kshs 10,200/-)
3.Respondent to issue a Certificate of Service within 14 days
4.Claimant to have costs

Authorities

Legislation

Employment Act, 2007sections 35, 41, 43, 45

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Charles Oduor Mirimo v Gilani’s Supermarket Limited [2017] KEELRC 1926 (KLR)", Case Analysis (2017). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1926/eng@2017-01-20

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