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ELRCPartially Allowed· [2018] KEELRC 456 (KLR)

Wilson Wachira Mathenge v Hashi Energy Limited [2018] KEELRC 456 (KLR)

Employment and Labour Relations Court
13 December 2018
NMNzioki wa Makau
1,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an employee who skips work after a show cause notice loses his right to claim unfair hearing, though he still gets earned pay and leave dues.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a pump attendant, later station manager at Nyeri Station and at dismissal a customer attendant earning Kshs. 22,652/-, sued for unlawful dismissal following termination in March 2016 after an audit revealed missing stock including LPG cylinders valued at Kshs. 790,600/-. He sought general damages, March 2016 salary, three years' leave arrears (2013-2016), one month's salary in lieu of notice, costs and interest, contending he was dismissed without a hearing or notice to show cause. The Respondent maintained that a show cause notice dated 18th March 2016 was issued, that the Claimant absented himself, was unreachable through contacts provided, and was dismissed after a week of absenteeism; the loss was also reported to police and a criminal case against the Claimant was ongoing. The court found that although the Claimant was entitled to a hearing, his own absence after the show cause notice meant the failure to accord him a hearing could not be ascribed to the Respondent. However, he was entitled to pay for the 18 days worked in March 2016 (Kshs. 15,630/-) and leave dues of Kshs. 66,901.14, less notice pay since he left without notice. Judgment was entered for the Claimant for Kshs. 82,531.14 less statutory deductions, with costs of the suit capped at Kshs. 40,000/-. The general claim for damages and notice pay was effectively not granted.

Key legal issues

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01

Whether the dismissal was procedurally fair under Section 41 of the Employment Act

Holding

Although the Claimant was entitled to a hearing, his own absence after the show cause notice meant the employer could not be blamed for the failure to hold a hearing

Reasoning

The Respondent issued a show cause notice dated 18th March 2016; the Claimant absented himself, was arrested and charged with theft, and did not resume work. The court accepted the Respondent tried to contact him through his mother and spouse. Because his absence prevented the hearing, the procedural failure could not be attributed to the Respondent.

p. 2
02

Whether the Respondent proved valid reasons for termination under Section 43(1)

Holding

The dismissal followed an audit revealing loss of stock; the court nonetheless awarded the Claimant his earned dues

Reasoning

The court found the Respondent showed the Claimant was dismissed for absconding work after an audit at the station. The court did not award general damages but assessed the specific dues earned: pay for 18 days worked in March 2016 and leave dues of Kshs. 66,901.14, less notice pay since he left without notice.

p. 2

Legal principles established

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  • An employee is entitled to a hearing before dismissal, but where the employee is absent and cannot be reached, the failure to accord a hearing cannot be ascribed to the employer
  • An employee dismissed after an audit remains entitled to pay for days actually worked and to accrued leave dues, less notice pay where he left without notice

Court orders

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  1. 1.Judgment entered for the Claimant for Kshs. 82,531.14 less statutory deductions
  2. 2.Costs of the suit to the Claimant capped at Kshs. 40,000/-

Authorities

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Legislation

  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 47(5)

Cases cited (3)

  • Njoroge Njuguna v Time Trek Security Services Limited
    [2018] eKLR
  • Daniel Mueke v Bhogals Auto World
    [2014] eKLR
  • George Ogweno v Autolitho Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court first-instance claim under the Employment Act, 2007

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, "Wilson Wachira Mathenge v Hashi Energy Limited [2018] KEELRC 456 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/456/eng@2018-12-13

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