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ELRCPartially AllowedCause No 1159 of 2013· [2018] KEELRC 522 (KLR)

Carolyne Munala v Hoggers Limited [2018] KEELRC 522 (KLR)

Employment and Labour Relations Court
30 November 2019
OMONESMUS N. MAKAU
1,760 words in judgment
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The bottom line

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A Kenyan court upheld a dismissal because the employee declined a disciplinary hearing, awarding only unpaid dues and holiday pay.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 1.4.1999 as a cook and rising to Assistant Manager, sued for notice pay, salary for days worked, leave pay, overtime, severance pay for 14 years, public holiday pay, 12 months' compensation for unfair termination, a certificate of service and future salary after her dismissal on 7.4.2013 for alleged deliberate alteration and misrepresentation of stock counts. The respondent admitted the employment relationship but asserted that between October 2012 and March 2013 the claimant was involved in missing stock, shrinkages, incorrect purchases and stocking expired products, and that she declined a disciplinary hearing offered by letter dated 28.3.2013. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs should be granted. Applying sections 43(2) and 45 of the Employment Act, the court held the termination was grounded on a valid and fair reason and that the procedure was fair because the claimant was offered a hearing which she expressly declined in writing. Relying on Esha Chizi Lugogo v Pact Kenya and Jackson Butiya v Eastern Produce Limited, the court held that an employee who squanders the internal grievance mechanism cannot later complain of lack of hearing. The claims for notice pay, compensation, severance, overtime and March 2013 salary were dismissed; judgment was entered for Kshs.40,970.95 for 7 days worked, 30 leave days and 12 public holidays, plus half costs and interest, and a certificate of service was ordered.

Key legal issues

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01

Substantive fairness of the termination

Holding

The termination was grounded on a valid and fair reason (misconduct and poor performance) as the employer genuinely believed the stock irregularities existed

Reasoning

The claimant was notified by the letter of 28.3.2013 of the charges of missing stock, shrinkages, incorrect purchases, expired products and undeclared cash. Under section 43(2), the reasons are what the employer genuinely believed at termination. Having received and acknowledged the charges, and having declined a hearing, the employer was justified to believe she was guilty of the offences charged.

p. 3
02

Procedural fairness of the termination

Holding

The employer satisfied section 41 because it offered the claimant a disciplinary hearing which she expressly declined

Reasoning

The letter of 28.3.2013 framed charges, suspended the claimant for three days, and invited her either to accept termination or request a disciplinary hearing. She signed in writing that she did not intend to undergo a hearing. Relying on Esha Chizi Lugogo v Pact Kenya and Jackson Butiya v Eastern Produce Ltd, the court held that one who squanders the internal grievance mechanism cannot later accuse the employer of dismissing her without a hearing.

p. 3
03

Entitlement to terminal dues and reliefs

Holding

Only proved dues (7 days worked, leave days and 12 public holidays worked) were awarded; notice pay, compensation, severance, overtime and March 2013 salary were refused

Reasoning

Following the finding of fair termination, compensatory damages and notice pay fell away. Severance was misconceived as there was no redundancy. Overtime and March 2013 salary lacked evidential support, and the claim of 140 holidays worked was unsupported; the employer's computation of 12 public holidays and 30 leave days was adopted.

p. 3

Legal principles established

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  • An employee who declines an employer's internal disciplinary hearing cannot later complain that no hearing was accorded before termination
  • The reasons for termination are the matters the employer genuinely believed to exist at the time of termination
  • Unfair termination under section 45 requires both a valid and fair reason and a fair procedure

Court orders

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  1. 1.Dismissal of the claims for salary in lieu of notice and compensation for unfair termination
  2. 2.Dismissal of the claim for severance pay
  3. 3.Dismissal of the claims for overtime and salary for March 2013
  4. 4.Judgment for the claimant in the sum of Kshs.40,970.95 for 7 days worked, 30 leave days and 12 public holidays worked
  5. 5.Grant of the prayer for a certificate of service
  6. 6.Half costs to the claimant and interest from the date of filing suit
  7. 7.Payment of the award less statutory deductions

Authorities

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Legislation

  • Employment Actsection 44(4)(c)
  • Employment Actsection 45
  • Employment Actsection 45(4)(b)
  • Employment Actsection 35(1)
  • Employment Actsection 41
  • Employment Actsection 43(2)
  • Employment Actsection 51
  • Regulation of Wages (Hotels and Catering Trades) Ordergratuity

Cases cited (5)

  • Agnes Yahuma Digo Vs PJ Petroleum Equipment Limited
  • Jane Samba Mukala Vs Ol Tukai Lodge Ltd
  • Judicial Service Commission Vs Gladys Boss Shollei and Another
    [2014]eKLR
  • Esha Chizi Lugogo vs Pact Kenya
    [2013]eKLR
  • Jackson Butiya Vs Eastern Produce Limited
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Carolyne Munala v Hoggers Limited [2018] KEELRC 522 (KLR)", Case Analysis (2019). Cause No 1159 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/522/eng@2018-11-30

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