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ELRCDismissedStatement of Claim dated 17th December 2012 (cause number not stated in judgment)· [2019] KEELRC 226 (KLR)

Wycliffe Elijah Nyakundi & 6 others v Safaricom Limited [2019] KEELRC 226 (KLR)

Employment and Labour Relations Court
22 November 2019
MOMaureen Onyango
4,382 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Safaricom fairly dismissed six employees over bribery allegations, confirming that fair hearings, not perfect ones, satisfy the Employment Act.

What this practically means

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Executive summary

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Six former Safaricom employees sued Safaricom Limited seeking declarations that their constitutional rights and natural justice were breached, general damages for unconstitutional and unfair dismissal, unpaid bonuses and incentives, reinstatement, costs and interest. Their claim arose from an anonymous email of 23 April 2012 alleging receipt of bribes by Area Sales Managers, followed by suspension in May 2012, investigative meetings with the Respondent's risk team at which legal representation was refused, disciplinary hearings in July 2012 and notices of summary dismissal dated 6 August 2012. The Respondent maintained that the dismissals were for gross misconduct under section 44(3) and (4) of the Employment Act, that its Human Resource Manual excluded legal representation at hearings, and that the Claimants never exercised their right of appeal. The court framed three issues: fairness of the process, lawfulness of the termination, and entitlement to remedies. It held the process was largely procedurally fair, the only lapse being the failure to furnish the Claimants with information and documents to prepare their defence. The reasons for dismissal, grounded in the Respondent's Anti-Corruption & Bribery Policy and Gift Policy, were valid and fair, and the Respondent discharged its burden of justification. The Claimants did not deny the bribery allegations, did not plead section 49 remedies, gave no particulars of the bonuses, and reinstatement was time-barred after three years. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Procedural fairness of the dismissal process under section 41 of the Employment Act

Holding

The process was largely procedurally fair except for the failure to furnish information and documents to the Claimants for their defence

Reasoning

The Respondent informed the Claimants of the allegations, investigated them through its risk team, and afforded them disciplinary hearings. Its Human Resource Manual, part of their contracts, prohibited legal representation, and the Act requires only a colleague or union representative. The sole lapse was failure to furnish information and documents, but the process was otherwise in adherence to section 41. The law requires a fair, not perfect, hearing.

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02

Substantive justification for the summary dismissal

Holding

The reasons for dismissal were valid and fair; the Respondent discharged its burden of justification

Reasoning

Under sections 43, 45 and 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee while the employer must justify the grounds. The Claimants did not deny allegations of bribery and receipt of gifts contrary to the Anti-Corruption & Bribery Policy and Gift Policy. Applying the reasonable responses test, the dismissal met the reasonableness standard.

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03

Entitlement to the remedies sought

Holding

The Claimants were not entitled to the reliefs sought

Reasoning

Having concluded the dismissal was procedurally and substantively fair, the declaratory orders and damages fall away. Section 49 remedies were not specifically pleaded. The bonus claims failed for want of particulars and proof, being special damages, and reinstatement was time-barred under section 12(3) of the ELRC Act.

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Legal principles established

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  • An employer must furnish an employee with information and documentation in its possession to enable the employee adequately prepare a defence for a disciplinary process
  • Where a Human Resource Manual prohibiting legal representation at disciplinary hearings forms part of the employment contract, the employee is bound by it; the Employment Act requires only a fellow employee or shop floor union representative

Court orders

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  1. 1.The entire claim is dismissed
  2. 2.Each party shall bear its own costs
Jurisdiction invoked
Industrial Court Act section 12(3) / Employment Act (ELRC jurisdiction over employment disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wycliffe Elijah Nyakundi & 6 others v Safaricom Limited [2019] KEELRC 226 (KLR)", Case Analysis (2019). Statement of Claim dated 17th December 2012 (cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/226/eng@2019-11-22

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