Peter Maina Kinyanjui v Woolmart Supermarket Limited [2019] KEELRC 13 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Fairness of summary dismissal and service of disciplinary notices
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
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.
Availability of reinstatement
Reinstatement was not available as no criminal case was shown to be pending and over three years had passed since suspension
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.
Entitlement to notice pay and compensation
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
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.
Legal principles established
#- 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
#- 1.Matter referred to the County Labour Officer, Nakuru to tabulate the owing dues taking into account the last gross wage paid
- 2.Compensation awarded at three (3) months gross wage
- 3.Notice pay awarded at one (1) month gross wage
- 4.Pay for May, June and until 15th July, 2015
- 5.Pay for earned leave days up and until 15th July, 2015
- 6.Certificate of service to be issued in accordance with section 51 of the Employment Act, 2007
- 7.Paid dues subject to the provisions of section 49(2) of the Employment Act, 2007
- 8.Each party to bear own costs
- 9.Mention on 23rd January, 2020 to confirm the Labour Officer tabulations
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, section 12; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nancy Wangui Mwangi v Optica Limited [2019] KEELRC 39 (KLR)[2019] KEELRC 39 (KLR)17 Dec 2019applied
Cite this brief
#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.