Jamleck Kariuki Kibugi v DHL Exel Supply Chain (K) Limited [2018] KEELRC 1342 (KLR)
The bottom line
#An employer who cannot prove the real reason for firing you must pay compensation, even if you once signed an admission of fault.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was unfair
The dismissal was unfair because the respondent failed to prove the reason for termination; the unchallenged evidence was that the confession of negligence was forced by the Security Officer.
Section 45(2) requires the employer to prove both valid and fair reason and fair procedure. Under section 43 the burden of proving the reason lies on the employer. The claimant retracted his confession, blaming the Security Officer, who gave no evidence to rebut. The respondent called no witnesses and did not discharge the burden, rendering the dismissal unfair and unjustified.
Whether procedure under section 41 was followed
A signed written admission in response to a show cause letter obviated the need for an oral hearing.
The claimant signed a response to the show cause letter admitting negligence. The court held that in such circumstances an oral hearing in the presence of a fellow employee or union representative was unnecessary. However, this did not cure the respondent's failure to prove the reason for dismissal.
What remedies flow from the unfair dismissal
One month's salary in lieu of notice plus two months' compensation, reflecting the unexpired term of the fixed contract, plus certificate of service.
Having found the dismissal unfair, the court awarded notice pay of Kshs.24,200 and compensation of two months' salary (Kshs.48,400), limited because the contract had only two months to run. Certificate of service was awarded as a statutory right under section 51 of the Employment Act.
Legal principles established
#- Under section 43 of the Employment Act the employer bears the burden of proving the reason for termination, and in default the termination is unfair under section 45.
- Where an employee admits the misconduct in a signed response to a show cause letter, no further oral hearing under section 41 is required.
- Compensation for unfair termination of a fixed term contract is limited to the unexpired period of the contract.
Court orders
#- 1.Judgment entered for the claimant in the sum of Kshs.72,600
- 2.Costs of the suit to the claimant
- 3.Interest at court rate from the date of judgment
- 4.Award to be paid less statutory deductions
- 5.Certificate of service to be issued to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (s.45, 43, 41 and 51 referred to)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamleck Kariuki Kibugi v DHL Exel Supply Chain (K) Limited [2018] KEELRC 1342 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1342/eng@2018-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.