Felix Kipkirui Cheruiyot v Vegpro Kenya Ltd [2018] KEELRC 858 (KLR)

Employment and Labour Relations Court

26 October 2018

BOByram Ongaya

1,079 words in judgment

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The bottom line

Kenya's Employment Court ruled that an employee's written admission of misconduct can make a formal disciplinary hearing unnecessary, though earned dues must still be paid.

What this practically means

Executive summary

The claimant, employed by the respondent from 01.06.2005 as a labelling operator, sued for declarations that his summary dismissal of 20.03.2014 was unlawful and unfair, plus terminal dues and compensatory damages totalling Kshs. 440,000.00 with interest and costs. He alleged no show-cause notice was served, no disciplinary hearing was held, and the dismissal was harsh despite over eight years of clean service. The respondent contended the claimant breached printing procedures on 13.03.2014, printed incorrect labels, and had five prior warning letters on his record; the claimant had written on 15.03.2014 admitting he did not follow the correct procedure. The court held that the respondent substantially complied with section 41 of the Employment Act because the claimant's written admission made a show-cause notice and elaborate disciplinary hearing superfluous, and that under section 43 a valid and genuine reason for dismissal existed. Applying Linus Barasa Odhiambo v Wells Fargo Limited, the court found fundamental breach justified summary dismissal under section 44(3), so no notice pay was due. However, the claimant was awarded pay for 20 days worked (Kshs. 16,866.70) and annual leave pay (Kshs. 22,000.00), totalling Kshs. 38,866.70, payable by 01.12.2018 failing which interest at court rates from 20.03.2014. As the respondent had offered to pay the amounts awarded, each party was ordered to bear its own costs. The suit therefore partially succeeded.

Key legal issues

Procedural fairness of the summary dismissal

Holding

The respondent substantially complied with the requirements of fair procedure; the claimant's written admission made a show-cause notice and elaborate hearing superfluous.

Reasoning

The court found the claimant knew the allegations against him and wrote on 15.03.2014 admitting them. In the court's opinion, an admission in writing rendered the section 41 procedural steps of a show-cause notice and disciplinary hearing unnecessary. Accordingly, the procedural requirements for fair termination were substantially met.

p. 2

Validity of the reason for dismissal under section 43

Holding

The respondent had a valid and genuine reason for the dismissal, being the claimant's admitted breach of printing procedures and prior warnings.

Reasoning

Relying on the exhibited written admission of 15.03.2014 and the record of previous warnings about performance, the court found the respondent established a valid reason for dismissal as at the time of termination. The termination was therefore neither unfair in substance nor in procedure, defeating the claim for compensation.

p. 2

Entitlement to notice pay and terminal dues

Holding

No pay in lieu of notice was due since summary dismissal was lawful, but the claimant was awarded pay for 20 days worked (Kshs. 16,866.70) and annual leave pay (Kshs. 22,000.00).

Reasoning

The court applied section 44(3) as explained in Linus Barasa Odhiambo v Wells Fargo Limited, holding that the claimant's fundamental breach justified summary dismissal on shorter notice. However, the unpaid dues for days worked and earned leave remained payable, and the respondent had already offered to pay them.

p. 3

Legal principles established

Once an employee admits allegations in writing, it is superfluous for the employer to serve a show-cause notice and hold an elaborate disciplinary hearing under section 41 of the Employment Act.
Under section 44(3) of the Employment Act, summary dismissal is tenable where the employee has by his conduct fundamentally breached his obligations under the contract of service, permitting termination on shorter notice than agreed or provided in the Act.

Court orders

1.Payment of Kshs. 38,866.70 by 01.12.2018, failing which interest at Court rates from the date of termination, 20.03.2014, until full payment
2.Each party to bear own costs of the suit

Authorities

Legislation

Employment Act, 2007section 41
Employment Act, 2007section 43
Employment Act, 2007section 44(3)
Employment Act, 2007section 35

Cases cited (1)

Linus Barasa Odhiambo –Versus- Wells Fargo Limited
[2012] eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original jurisdiction over employment disputes)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Felix Kipkirui Cheruiyot v Vegpro Kenya Ltd [2018] KEELRC 858 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/858/eng@2018-10-26

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