Patrick K Maina v Tusker Mattresses Limited [2018] KEELRC 18 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural fairness under section 41 of the Employment Act
The summary dismissal was procedurally unfair as the claimant was not accorded the safeguards of section 41, including the right to be accompanied by a person of his choice and to call witnesses.
The court applied sections 43, 41 and 47(5) of the Employment Act and the Chitavi case on the ingredients of procedural fairness. At the disciplinary meeting of 4 February 2015, the presence of Joseph Muiruri as a witness was unclarified - it was not established whose witness he was or that he accompanied the claimant at his election. Had due process been followed, the claimant's defence would have emerged and a less harsh sanction would have issued. Summary action was therefore taken without due process, amounting to procedural unfairness.
Substantive justification for the dismissal
There existed justifiable grounds for dismissal because the claimant admitted breaching the cash policy by paying a director Kshs. 3 million from petty cash in contravention of the limit of Kshs. 50,000.00.
The court found the claimant admitted paying a director contrary to a recently-issued policy of which he had a copy. That conduct was gross and justified dismissal on substantive grounds. However, because procedure under section 41 was not followed, the employer's liability was limited to compensation of one month's gross pay rather than a finding of wholly unfair termination.
Appropriate remedy and costs
The remedy for procedural unfairness was compensation of one month's gross pay (Kshs. 18,156.00), and as terminal dues had been paid immediately upon dismissal, each party was to bear its own costs.
The court invoked section 45(5) of the Employment Act, noting the respondent paid the claimant's terminal dues immediately upon dismissal. Balancing the substantive justification against the procedural lapse, the court awarded one month's gross pay and exercised discretion on costs accordingly.
Legal principles established
#- Even where an employer has substantive grounds to dismiss, dismissal without adherence to the mandatory procedure under section 41 of the Employment Act amounts to procedural unfairness, for which compensation is the sanction.
- An employee facing disciplinary hearing has the right to have present an employee or person of his choice, and witnesses to be called are at the employee's discretion.
Court orders
#- 1.Judgment entered for the claimant with an award of Kshs. 18,156.00 being one month's gross pay as compensation for procedural unfairness
- 2.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45(5), 47(5) and 44(3))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick K Maina v Tusker Mattresses Limited [2018] KEELRC 18 (KLR)", Case Analysis (2018). Cause No. 93 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/18/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.