Joseph M. Lazarus v H. Young & Company (E.A) Limited [2018] KEELRC 531 (KLR)
The bottom line
#A Kenyan court ruled an excavator operator was unfairly fired over suspected fuel theft because his employer had no investigation report and never gave him a hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
The reason advanced (suspicion of fuel siphoning) was not a valid reason under Section 45(2) of the Employment Act
The employer relied on an investigation into fuel siphoning but did not avail the investigation report, so the court could not discern whether the Claimant was reasonably suspected. The machine was left in the Respondent's yard accessible to other personnel and security, so the fuel loss could not be attributed solely to the Claimant.
Procedural fairness under Section 41 of the Employment Act
The Claimant was not notified of the allegations and was not given an opportunity to defend himself, contrary to Section 41
The Claimant was dismissed on 22nd August 2017, the same day he was accosted with the charges, without a disciplinary meeting or opportunity to respond. Citing Walter Ogal Anuro v Teachers Service Commission, the court held both procedural and substantive fairness under Section 41 were not accorded.
Burden of proof in unfair termination
The Claimant proved an unlawful termination and the Respondent failed to justify the dismissal
Under Sections 45 and 47(5) of the Employment Act, the Claimant bears the burden of proving termination occurred while the employer must justify the grounds. The Claimant discharged his burden and the Respondent failed to prove a valid reason and fair procedure.
Legal principles established
#- An employer who fails to avail an investigation report cannot establish a valid reason for summary dismissal on suspicion, and dismissal without affording the employee a hearing under Section 41 is unfair
Court orders
#- 1.One month salary in lieu of notice of Kshs. 42,775/-
- 2.Kshs. 32,209/- unlawfully deducted from the Claimant's salary to be reimbursed
- 3.6 months' salary as compensation of Kshs. 256,650/-
- 4.Costs of the suit to the Claimant
- 5.Interest at court rates on the sums in (a), (b) and (c) from the date of judgment till payment in full
- 6.Certificate of service to be issued to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (defence denied the court's jurisdiction but no basis is expressly stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph M. Lazarus v H. Young & Company (E.A) Limited [2018] KEELRC 531 (KLR)", Case Analysis (2018). Suit No 389 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/531/eng@2018-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.