Vincent Nyachibwede v Bob Morgan Services Limited [2018] KEELRC 274 (KLR)
The bottom line
#A Kenyan court awarded a dismissed rider Kshs. 239,200 because his employer couldn't prove theft allegations with evidence or give him a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to warrant dismissal of the Claimant
The Respondent failed to prove the alleged fuel siphoning; the dismissal was without valid reasons and therefore unfair under Sections 43 and 45 of the Employment Act
The Respondent alleged the Claimant siphoned fuel, amounting to theft by servant, but called only its Human Resource Manager. The two persons who allegedly implicated the Claimant were not called as witnesses. No investigation report was availed. The Claimant denied the theft and there was no contrary evidence, so the burden of proving the reason for dismissal under Section 43 was not discharged.
Whether the Claimant was subjected to due process before dismissal
No due process was followed; the Claimant was not accorded the fair disciplinary process required by Section 41 of the Employment Act
Section 41 obliges an employer to explain the reasons for contemplated termination and to hear and consider the employee's representations. The investigation report and minutes of the disciplinary process were not availed to the court, and the witness who allegedly mentioned the Claimant did not attend the disciplinary hearing. The court therefore concluded the process was procedurally flawed.
Whether the Claimant is entitled to the remedies sought
The Claimant was awarded notice pay, unpaid salary during suspension and 6 months' compensation for unfair termination, less than the 12 months sought
Having found the dismissal unfair both on reason and procedure, the court exercised its discretion under Section 49 to award 6 months' salary as compensation, plus one month's notice pay and the unpaid salary for the six months of suspension during which the Claimant reported to work but was not paid.
Legal principles established
#- An employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair under Section 45 of the Employment Act
- Mere suspicion, however strong, cannot amount to proof of misconduct justifying summary dismissal
Court orders
#- 1.Payment of 1 month's salary in lieu of notice of Kshs. 18,400/=
- 2.Payment of salary unpaid during suspension from 17th February to 22nd August 2012, being 6 months' salary of Kshs. 110,400/=
- 3.Payment of 6 months' salary as compensation for unlawful and unfair termination, being Kshs. 110,400/=
- 4.Total award of Kshs. 239,200/= to the Claimant
- 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations disputes) over a claim for terminal dues and compensation for unfair summary dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vincent Nyachibwede v Bob Morgan Services Limited [2018] KEELRC 274 (KLR)", Case Analysis (2018). Cause No. 327 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/274/eng@2018-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.