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ELRCDismissedCause dated 14th September 2017 (Memorandum of Claim filed 14th September 2017)· [2018] KEELRC 868 (KLR)

Feroz Ali Omar v ECU Worldwide Limited [2018] KEELRC 868 (KLR)

Employment and Labour Relations Court
25 October 2018
LNLinnet Ndolo
1,566 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 dismissed an employee's unfair termination claim because he ignored his employer's show cause letter and skipped his own disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 6th November 2002, rising from Accountant to Head of Clearing and Forwarding, was issued a show cause letter on 4th August 2017 over alleged fraudulent dealings following irregular release of shipments that cost the Respondent USD 41,016.02 and Kshs. 576,325.75 in irregular transport charges. He was suspended and invited to a disciplinary hearing on 14th August 2017. He neither responded to the show cause letter nor attended the hearing; instead, his advocates wrote on the hearing date demanding concise charges, supporting material and a hearing date within 14 days. The Respondent replied that the letter came after the disciplinary deliberations, and terminated his employment on 17th August 2017. The Claimant sued for unlawful termination, claiming notice pay, 12 months' compensation and overtime. The court framed two issues: lawfulness and fairness of the termination, and entitlement to remedies. Holding that the burden to respond to disciplinary proceedings rests with the employee and that consulting an advocate does not insulate an employee from responding, and applying Mary Wagikuyu Komu and Jackson Butiya, the court found the Claimant had acted irresponsibly and locked himself out of the internal disciplinary process. The termination was held lawful and fair. Notice pay was admitted as paid, and the unproved overtime claim was dismissed. The entire case was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The termination was lawful and fair. The Claimant was issued a show cause letter and invited to a disciplinary hearing but neither responded to the letter nor attended the hearing, instead writing through advocates on the hearing date itself. He locked himself out of the internal disciplinary process.

Reasoning

The court found the employer complied with Section 41 requirements by issuing a show cause letter and inviting the Claimant to an oral hearing. The Claimant's failure to respond or attend was attributed to his own delay in consulting a lawyer. Relying on Mary Wagikuyu Komu and Jackson Butiya, the court held the burden to respond rests with the employee and the Court will not rescue an employee who squanders internal mechanisms.

p. 3
02

Whether the Claimant is entitled to the remedies sought

Holding

No. Notice pay was admitted as paid, compensation for unfair termination failed with the main claim, and overtime was not proved.

Reasoning

The Claimant admitted receiving one month's salary in lieu of notice, defeating that head. Having found the termination lawful and fair, no compensation under Section 49 was payable. The overtime claim of 3 hours per week for 7 years was unsupported by evidence and therefore dismissed.

p. 3

Legal principles established

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  • The burden to respond to disciplinary proceedings rests with the employee; engaging an advocate does not excuse non-response to a show cause letter or non-attendance at a disciplinary hearing
  • Procedural fairness under Section 41 of the Employment Act is fulfilled by a show cause letter and an oral disciplinary hearing; an employee must raise process complaints with the employer within the timelines provided
  • An employee who squanders internal grievance mechanisms cannot later claim he was not heard; the Court does not supervise internal grievance processes

Court orders

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  1. 1.The Claimant's entire case fails and is dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (2)

  • Mary Wagikuyu Komu v The Kenya Hospital Association T/A The Nairobi Hospital
    [2016] eKLR
  • Jackson Butiya v Eastern Produce Limited
    Cause No 335 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment and labour relations dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Feroz Ali Omar v ECU Worldwide Limited [2018] KEELRC 868 (KLR)", Case Analysis (2018). Cause dated 14th September 2017 (Memorandum of Claim filed 14th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/868/eng@2018-10-25

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