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ELRCPartially AllowedCause No. 113 of 2016· [2019] KEELRC 13 (KLR)

Peter Maina Kinyanjui v Woolmart Supermarket Limited [2019] KEELRC 13 (KLR)

Employment and Labour Relations Court of Kenya
28 November 2019
2,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a supermarket unfairly dismissed a robbed employee because it mailed disciplinary notices to an unconfirmed address instead of hand-delivering them.

What this practically means

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Executive summary

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The claimant, employed by the respondent from January 2007, was sent to bank Ksh.550,000 at DTB Bank on 25th May 2015 when he was allegedly hijacked and robbed of the cash and his phone. He was suspended by hand-delivered letter dated 26th May 2015, arrested by police, and subsequently dismissed by summary dismissal letter dated 15th July 2015. The claimant challenged the dismissal as unfair and contrary to natural justice, seeking reinstatement, notice pay, pension, service pay, damages, leave allowance, a certificate of service and salary for May. The respondent defended the dismissal, asserting that show cause, hearing and dismissal notices were sent to the claimant's postal address from his job application, and that he failed to respond or attend the disciplinary hearing. The court held that in the absence of a written contract of employment containing the mandatory particulars of section 10(2) of the Employment Act, 2007, reliance on the postal address was unreasonable, and since the suspension letter had been hand delivered, the respondent ought to have done the same with the disciplinary notices. The last effective communication being the suspension letter, the dismissal amounted to unfair labour practice contrary to Article 41 of the Constitution. Reinstatement was refused as no criminal case was pending and over three years had elapsed. The court found unfair termination and referred tabulation of dues - three months' compensation, one month's notice pay, salary up to 15th July 2015, and accrued leave - to the County Labour Officer, Nakuru, with each party bearing its own costs.

Key legal issues

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01

Fairness of summary dismissal and service of disciplinary notices

Holding

The dismissal was procedurally unfair because the show cause, hearing and dismissal notices were sent to a postal address that was not substantiated by a written contract of employment, while the suspension letter had been hand delivered

Reasoning

The court found the last actual communication to the claimant was the hand-delivered suspension letter. Notices sent to P.O. Box 2336-20100 Nakuru, an address not established by any written contract under section 10(2) of the Employment Act, were unreasonable and unjustified. The employer could have recalled or hand-delivered the notices. This amounted to unfair labour practice contrary to Article 41 of the Constitution.

p. 3
02

Availability of reinstatement

Holding

Reinstatement was not available as no criminal case was shown to be pending and over three years had passed since suspension

Reasoning

The claimant sought reinstatement pending hearing of a criminal case, but he testified he was arrested and never charged, so the rationale for reinstatement was lost. Further, section 49 of the Employment Act read with section 12 of the ELRC Act limits the period for reinstatement, and over three years had elapsed since the May 2015 suspension.

p. 4
03

Entitlement to notice pay and compensation

Holding

One month's pay in lieu of notice under section 35 and three months' compensation, with dues tabulated by the County Labour Officer in the absence of wage particulars

Reasoning

With no written contract of service defining terms and no particulars of the claimant's address or wage details, the court relied on the unfair labour practice finding to award notice pay under section 35 and three months' compensation, directing the Labour Officer to compute dues based on the last gross wage.

p. 4

Legal principles established

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  • An employer retains the prerogative to suspend an employee and to conduct internal disciplinary procedures even where criminal investigations are ongoing
  • Purposes and objectives of a criminal trial differ from disciplinary proceedings within the employment relationship
  • Section 10(2) of the Employment Act prescribes mandatory particulars, including the employee's permanent address, for written contracts of service

Court orders

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  1. 1.Matter referred to the County Labour Officer, Nakuru to tabulate the owing dues taking into account the last gross wage paid
  2. 2.Compensation awarded at three (3) months gross wage
  3. 3.Notice pay awarded at one (1) month gross wage
  4. 4.Pay for May, June and until 15th July, 2015
  5. 5.Pay for earned leave days up and until 15th July, 2015
  6. 6.Certificate of service to be issued in accordance with section 51 of the Employment Act, 2007
  7. 7.Paid dues subject to the provisions of section 49(2) of the Employment Act, 2007
  8. 8.Each party to bear own costs
  9. 9.Mention on 23rd January, 2020 to confirm the Labour Officer tabulations

Authorities

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Legislation

  • Employment Act, 2007section 10(2), 11, 13, 35, 49, 49(2), 51
  • Employment and Labour Relations Court Act, 2011section 12
  • Constitution of Kenya, 2010Article 41

Cases cited (2)

  • Leonard Matu Wanjau versus Agriculture, Fisheries & Food Authority (Pyrethrum & Other Industrial Crops Directorate)
    Cause No.313 of 2016 (Nakuru)
  • Thomas B. Miningwo versus Egerton University
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Peter Maina Kinyanjui v Woolmart Supermarket Limited [2019] KEELRC 13 (KLR)", Case Analysis (2019). Cause No. 113 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/13/eng@2019-11-28

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