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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 690 (KLR)

Archybald Munialo Munialo v Metal Crowns Limited [2018] KEELRC 690 (KLR)

Employment and Labour Relations Court
19 October 2018
1,417 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 confirmed that even a justified dismissal is unlawful if the employee is never given a chance to be heard before termination.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent, sued for wrongful dismissal, alleging he was never warned of underperformance, was not subjected to any internal disciplinary process, and was pressurized to sign a discharge certificate. He alleged racism by a director and sought, among other reliefs, 12 months' salary in lieu of notice, compensation, settlement of a bank loan the Respondent had allegedly guaranteed, and revocation of the director's work permit. The Respondent denied guaranteeing the loan and the racism allegations, asserting the termination was lawful, terminal dues were paid, and the Claimant signed an absolute discharge. The Respondent's witness, Caroline Moraa Asuma, HR and Administration Officer, supported this position. The court found that the Respondent failed to accord the Claimant the safeguards under Section 41 of the Employment Act, bringing the dismissal within the substantive and procedural fairness test. Although the Claimant was entitled to be heard and given an opportunity to defend himself, the court found he was paid all his terminal dues and that, save for the Section 41 failure, the dismissal was for good cause. The discharge certificate, not having been signed by the Claimant, was of doubtful probative value. The court entered judgment for the Claimant for compensation pegged at 3 months' salary (Kshs. 201,900/-), subject to statutory deduction under Section 49 of the Employment Act, and ordered each party to bear their own costs. The suit was partially allowed: most heads of relief sought were refused, with only compensation awarded.

Key legal issues

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01

Procedural and substantive fairness of the dismissal

Holding

The dismissal was unlawful because the Respondent did not accord the Claimant the safeguards under Section 41 of the Employment Act, though the dismissal was for good cause

Reasoning

The court found the Respondent failed to subject the Claimant to internal disciplinary process or give him an opportunity to defend himself against allegations of requisitioning excess parts. This brought the dismissal within the substantive and procedural fairness test. However, the Claimant was paid all terminal dues and save for the Section 41 failure, was dismissed for good cause, limiting compensation.

p. 3
02

Effect of the discharge certificate

Holding

The discharge certificate was not executed by the Claimant and could not discharge the Respondent

Reasoning

The material parts of the discharge certificate purported to confirm receipt of terminal dues of Kshs. 163,957/- and waiver of further claims. However, the certificate was not signed by the Claimant; it was only signed by a witness. Its probative value was therefore doubtful, proving only an effort to tie the Claimant down to a discharge that was never executed.

p. 3
03

Remedies for unlawful dismissal

Holding

Compensation was pegged at 3 months' salary under Section 49 of the Employment Act, subject to statutory deduction

Reasoning

Having found the dismissal unlawful only for want of procedural safeguards, and that terminal dues were paid and there was good cause, the court exercised discretion under Section 49 to award 3 months' salary as compensation, less statutory deductions, rather than the 12 months' salary sought.

p. 3

Legal principles established

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  • An employer must accord an employee the safeguards under Section 41 of the Employment Act before dismissal, failing which the dismissal is unlawful even where there is good cause
  • A discharge certificate not signed by the employee has doubtful probative value and cannot bind him

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for compensation pegged at 3 months' salary for the unlawful dismissal
  2. 2.3 months compensation of Kshs. 201,900/-, subject to statutory deduction as per Section 49 of the Employment Act
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 49
  • Employment Act 2007Not specified
  • ILO Convention 158Article 7

Cases cited (9)

  • Transport & Allied Workers Union v Societe International de Telecommunications Aerotechniques
    [2011] eKLR
  • Simon Muguku Gichigi v Taifa SACO Society Limited
    [2012] eKLR
  • Meshack Kiio Ikulume v Prime Fuels Kenya Limited
    [2013] eKLR
  • Reuben Mwambogo v Banhof Bar & Restaurant
    [2013] eKLR
  • Alphonce Sulpice Mzege v Mombasa Air Safari Ltd
    [2013] eKLR
  • Jane Wairimu Machira v Mugo Waweru and Associates
    [2012] eKLR
  • Alphonce Machanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited
    [2013] eKLR
  • Moses Kaunda Moro v CMC Motors Group Ltd
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a wrongful dismissal claim under the Employment Act

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, "Archybald Munialo Munialo v Metal Crowns Limited [2018] KEELRC 690 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/690/eng@2018-10-19

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