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ELRCDismissedCause No. 1775 of 2014· [2018] KEELRC 435 (KLR)

James Maundu Kasingili v Haandi Restaurant Limited [2018] KEELRC 435 (KLR)

Employment and Labour Relations Court of Kenya
3 December 2018
DMD. K. Njagi MareteMOMaureen Onyango
1,543 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a waiter's summary dismissal because his employer kept written proof of repeated misconduct and his own apologies.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a waiter from 1st September 2009 at a basic salary of Kshs.10,600, was summarily dismissed by a termination notice dated 4th June 2014 on grounds of insubordination and gross misconduct, following an incident in which he was absent from his designated duty area and engaged in an argument with the head chef. He filed a memorandum of claim seeking Kshs.317,183.90 in dues, twelve months' maximum compensation, general damages for loss of reputation and suffering, a certificate of service, interest and costs. The respondent denied the claim, pleading a history of gross misconduct including the mishandling of a customer's credit card, consuming alcohol on duty, retaining a customer's cash tip, and insubordination, and contending the dismissal was justified. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Noting the claimant filed no written submissions, the court found the respondent's documentary evidence - incident reports, warning letters and the claimant's written apologies - established overwhelming proof of gross misconduct that had been ably managed at the workplace. It held the termination lawful and disentitled the claimant to the relief sought. The claim was dismissed with each party bearing their own costs. Judgment was dated and signed 29th November 2018 and delivered 3rd December 2018.

Key legal issues

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01

Whether the summary dismissal was wrongful, unfair and unlawful

Holding

The dismissal was lawful. The respondent produced incident reports and warning letters documenting repeated gross misconduct, which the claimant admitted and apologised for; a case of unlawful termination did not arise.

Reasoning

The court noted the claimant filed no written submissions. The respondent's list of documents contained incident reports of 6th May 2012, 22nd May 2013, 28th October 2013 and 1st June 2014, warning letters and the claimant's written apologies. The court held these instances were ably managed at the workplace, the claimant admitted and apologised for the misconduct, and he could not be heard to reap from his own wrongdoing.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

He is not; disentitlement follows from the finding of lawful termination.

Reasoning

Having failed on the primary question of unlawfulness of the dismissal, all ancillary claims - rest days, public holidays, annual leave, three months' salary in lieu of notice, service pay, twelve months' maximum compensation and general damages - fell away, since they were premised on an unlawful and unfair termination.

p. 4
03

Costs of the claim

Holding

Each party to bear their own costs.

Reasoning

Despite the claim being dismissed, the court did not order the claimant to pay the respondent's costs, opting for a neutral costs order.

p. 4

Legal principles established

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  • Where an employer adduces documentary evidence of repeated gross misconduct which the employee admitted and apologised for, summary dismissal is lawful and no claim of unfair termination arises even absent formal disciplinary proceedings.

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment ActNo. 11 of 2007 (generally)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 over a claim of unlawful termination of employment and terminal benefits

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, "James Maundu Kasingili v Haandi Restaurant Limited [2018] KEELRC 435 (KLR)", Case Analysis (2018). Cause No. 1775 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/435/eng@2018-12-03

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