Peter Luseno Sikafu v BS Mohindra Limited [2019] KEELRC 410 (KLR)

Employment and Labour Relations Court

7 November 2019

MOMaureen Onyango

2,184 words in judgment

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The bottom line

A Kenyan court awarded a sacked cleaner Kshs.452,058 because his employer fired him for misconduct without first giving him a hearing.

What this practically means

Executive summary

The claimant, employed by the respondent from 1994 as a casual worker and confirmed in 1998 as a washroom cleaner, challenged the termination of his employment on 30th August 2013 on grounds of neglect of work or careless and improper performance of duties. The termination followed an incident in which waste from an unclogged sewer line was dumped in the garden instead of the septic tank. The claimant sought reinstatement or, alternatively, notice pay, gratuity and twelve months' wages as compensation, totalling Kshs.544,090. The respondent maintained that the claimant committed gross misconduct warranting summary dismissal under Section 45(2)(b) and (c) of the Employment Act, 2007. The court framed two issues: whether the termination was valid procedurally and substantively, and whether the claimant was entitled to the reliefs sought. On substance, the court found the respondent had a valid reason for termination, consistent with the conciliator's report. On procedure, however, the court found that due process under Section 41 was not followed: there were no minutes of a disciplinary hearing, no summoning letter, no notice to show cause, and the union was not notified. Relying on Walter Ogal Anuro v Teachers Service Commission and Francis Mbugua Boro v Smartchip Dynamics Ltd, the court held the termination procedurally unfair. The court awarded three months' notice pay (Kshs.46,032), gratuity for 19 years (Kshs.313,962) and compensation of six months' salary (Kshs.92,064), totalling Kshs.452,058, subject to statutory deductions, with costs and interest from the date of judgment. Reinstatement and twelve months' compensation were not granted.

Key legal issues

Whether the Respondent had a valid reason for terminating the Claimant's employment

Holding

The Respondent had a valid reason - the Claimant's gross misconduct in dumping sewer waste in the garden instead of the septic tank

Reasoning

The reason cited was gross misconduct: the Claimant was assigned to unblock a sewer line and dumped the waste into the open garden instead of the septic tank, exposing employees to health hazards and risking tenant complaints. The court found this constituted negligent and/or improper performance of duties, consistent with the conciliator's report dated 10th March 2015.

p. 3

Whether fair procedure under Section 41 of the Employment Act was followed

Holding

The termination was procedurally unfair; no evidence of a disciplinary hearing was tendered

Reasoning

Section 41 requires the employer to explain the reasons for termination to the employee in the presence of another employee or union official and allow a fair hearing. Although the Respondent claimed a hearing was accorded, no minutes of a disciplinary meeting, no summoning letter, and no notice to show cause were produced; the union was also not notified of any meeting.

p. 3

Whether the Claimant was entitled to the reliefs sought

Holding

Partially - three months' notice pay, gratuity for 19 years, and six months' salary as compensation were awarded; reinstatement and 12 months' compensation were not granted

Reasoning

The court awarded notice pay under Clause 10 of the CBA and gratuity under Clause 20 for 19 completed years of service. On compensation, the court considered the claimant's almost 20 years of fairly clean service, his contribution to the circumstances of termination, and the procedural violations, concluding that six months' salary was reasonable.

p. 4

Legal principles established

For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness
An employer must conduct a hearing as part of procedural fairness under Section 41 of the Employment Act before summarily dismissing an employee

Court orders

1.Judgment entered for the claimant against the respondent in the sum of Kshs.452,058.00 comprising notice (Kshs.46,032.00), gratuity (Kshs.313,962.00) and compensation of six months' salary (Kshs.92,064.00)
2.The amount awarded is subject to statutory deductions
3.The claimant is awarded costs of the claim
4.Interest on the awarded amount from the date of judgment

Authorities

Legislation

Employment Act, 2007Section 45(2)
Employment Act, 2007Section 45(2)(b) and (c)
Employment Act, 2007Section 41
Employment Act, 2007Section 41(2)
Labour Relations ActSection 62

Cases cited (2)

Walter Ogal Anuro -v- Teachers Service Commission
(2013) eKLR
Francis Mbugua Boro -Vs- Smartchip Dynamics Ltd
(2017) eKLR

Jurisdiction invoked: Original employment and labour relations jurisdiction (Employment Act, 2007; Labour Relations Act, Section 62 conciliation referred to)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Peter Luseno Sikafu v BS Mohindra Limited [2019] KEELRC 410 (KLR)", Case Analysis (2019). Cause No 832 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/410/eng@2019-11-07

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