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ELRCPartially AllowedCause No. 608 of 2013· [2018] KEELRC 188 (KLR)

Richard Ondiege Onyango v PZ Cussons East Africa [2018] KEELRC 188 (KLR)

Employment and Labour Relations Court of Kenya
4 December 2018
HWHellen S. Wasilwa
1,181 words in judgment
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The bottom line

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A Kenyan court awarded a store worker 8 months' salary because his employer dismissed him without warnings or proof of gross misconduct.

What this practically means

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Executive summary

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This first-instance employment claim originated as CC No. 5677 of 2009 in the Chief Magistrate's Court at Milimani and was transferred to the Industrial Court on 28 October 2011. The Claimant, employed by the Respondent from 1992 as a Store Worker under a Collective Bargaining Agreement with KCAWU, challenged his summary dismissal by letter dated 25 October 2005 on grounds of 'a high degree of negligence'. He contended that the alleged negligence did not amount to gross misconduct, that Clause 13 of the CBA required at least three written warnings before summary dismissal, and that he was dismissed without a disciplinary hearing or warnings, following introduction of a new MFG Pro computer system in July 2005 on which training was incomplete. The Respondent asserted gross misconduct arising from stock variances and failure to follow transactional procedures, invoking Clause 14 of the CBA, and sought dismissal of the claim. The court framed two issues: whether the summary dismissal was fair and justified, and whether the Claimant was entitled to remedies. Applying the repealed Employment Act Cap 226 and the CBA, the court found no warning had been issued and no gross misconduct established, noting RW1's admissions that the stock loss was never quantified and that manual deliveries continued after dismissal. The dismissal was held unfair and unjustified, and damages of eight months' salary (KShs 332,472) were awarded, with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the summary dismissal was fair and justified

Holding

The dismissal was unfair and unjustified; the Claimant's mistakes did not amount to gross misconduct and no warnings were issued as required by Clause 13 of the CBA

Reasoning

The court applied the repealed Employment Act Cap 226 and the CBA between the Respondent and KCAWU. Clause 13 required at least three written warnings within 12 months before summary dismissal for offences other than gross misconduct. RW1 admitted no stock loss amount was quantified, the memo was a show-cause not a warning, and manual deliveries continued after dismissal, undermining the negligence case.

p. 2

Legal principles established

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  • Where an employee is dismissed for gross misconduct under the repealed Employment Act and the applicable CBA requires a warning system, dismissal without warnings and absent gross misconduct is unfair and unjustified

Court orders

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  1. 1.Respondent to pay the Claimant damages equivalent to 8 months' salary (KShs 332,472)
  2. 2.Respondent to pay costs of the suit
  3. 3.Interest on the award at court rates from the date of judgment
On appeal from
Chief Magistrate's Court, Milimani Commercial Courts, Nairobi
CC No. 5677 of 2009
Jurisdiction invoked
Transfer from the Chief Magistrate's Court to the Industrial Court by order of 28/10/2011; Employment and Labour Relations Court jurisdiction over employment disputes

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, "Richard Ondiege Onyango v PZ Cussons East Africa [2018] KEELRC 188 (KLR)", Case Analysis (2018). Cause No. 608 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/188/eng@2018-12-04

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