Said Ndege v Steel Makers Limited [2018] KEELRC 303 (KLR)
The bottom line
#A Kenyan court upheld a dismissal for attempted theft but still awarded the employee his gratuity and unpaid leave pay.
What this practically means
#Executive summary
#Key legal issues
#Validity of reason for summary dismissal
Dismissal was substantively fair; the Claimant was caught attempting to steal and confessed in writing
The Respondent's witnesses saw the Claimant move 2 pieces of metal behind the Guardhouse, a non-production area, with a low perimeter wall suggesting intent to remove them from the compound. His letter of apology admitted taking the misrolls. The offence fell under Section 44(4)(g) of the Employment Act and clause 24(b)(vii) of the CBA, satisfying Sections 43 and 45.
Procedural fairness
Procedure was fair; the Claimant was suspended, his Union Shop Stewards involved, and he admitted the offence in writing, making a hearing unnecessary
The Claimant was suspended for 7 days to allow investigations; he returned the same day with an apology admitting the offence. With Shop Stewards involved at every turn and a written confession, a disciplinary hearing would have served no purpose.
Entitlement to gratuity despite summary dismissal
Clause 31 of the CBA does not exclude summarily dismissed employees; gratuity payable at 16 days' salary per complete year for 25 years
Neither clause 31 of the CBA nor clause 24(b) excludes employees summarily dismissed for lawful cause. Section 18(4) of the Employment Act requires payment of all benefits due up to dismissal. NSSA/NSSF subscription does not displace the freely negotiated CBA benefit.
Annual leave pay for 2012
Allowed at Kshs. 19,912; Respondent produced no evidence leave was taken or paid
Pay slips for 2012 showed zero leave encashment and the Respondent provided no documents showing payment. Clause 17 of the CBA entitled the Claimant to 26 working days' annual leave with full pay.
Certificate of Service declaration
Refused; the remedy lies in an order for release under Section 51(1) and (2) or a criminal complaint under Section 51(3)
The Court declined to re-declare what Section 51(3) already declares. The proper course is to seek release of the certificate or report to Police or a Labour Officer for prosecution.
Legal principles established
#- Once an employee concedes wrongdoing, complaints about lack of valid reason or unfair procedure in termination are of academic value only
- Contractual benefits under a CBA are given in addition to statutory benefits, and gratuity under a CBA is not excluded by summary dismissal unless expressly excluded
- A disciplinary hearing is unnecessary where the employee has admitted the charge
Court orders
#- 1.Declaration that termination of the Claimant's contract of employment was fair
- 2.Respondent to pay the Claimant annual leave pay of Kshs. 19,912 and gratuity of Kshs. 306,338, totalling Kshs. 326,250
- 3.Interest granted at 14% per annum from the date of termination, 18th June 2012
- 4.No order on the costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Ndege v Steel Makers Limited [2018] KEELRC 303 (KLR)", Case Analysis (2018). ELRC Cause (Mombasa) - Statement of Claim filed 13th June 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/303/eng@2018-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.