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ELRCPartially AllowedCause Number 1384 of 2013· [2019] KEELRC 859 (KLR)

Ann Wambui Ndirangu v Society Generale De Surveillance (Sgs) Kenya Limited [2019] KEELRC 859 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
20 September 2019
ANAbuodha J. N.
1,190 words in judgment
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The bottom line

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A Kenyan court ruled SGS unfairly fired an employee over a weighbridge incident, holding such a minor infraction only deserved a warning, and awarded her compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1st January 2011 as a General Assistance weighing at Gilgil weighbridge, was terminated on 18th June 2013 after being accused of facilitating truck KBU 832K to transgress the weighbridge without being weighed. She pleaded that the weighing machine was defective and that she was instructed by the duty manager to leave the reading void and have it recorded manually. A show cause letter was issued on 13th June 2013, she responded explaining the machine default, but her contract was terminated on 18th June 2013. The respondent maintained the dismissal followed due process and that the claimant made false or erroneous entries. In evidence, the claimant explained she recorded a power failure in the OB by mistake and had apologised; the respondent's witness said generators ensured uninterrupted weighing. The court, applying the reasonable employer test, noted that the claimant's show-cause response attached a statement by Bernard Muema, which the respondent never disputed, describing steps taken to detain the truck; this, with the evidence of Mr. Wanjohi about the vehicle's insurance documents and its departure from the yard, created doubt about the claimant's role. No evidence of prior misconduct was produced. The court held the infraction merited only a warning and that termination was harsh and unfair under Section 45 of the Employment Act. Since terminal dues had been paid, the court awarded ten months' salary (Kshs. 300,000/-) as compensation, plus costs and interest from the date of judgment, subject to taxes and statutory deductions. Judgment dated and delivered at Nairobi on 20th September 2019 by Abuodha J. N.

Key legal issues

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01

Whether the claimant was unfairly terminated

Holding

The termination was unfair; the infraction, if any, merited only a warning

Reasoning

The court found the respondent's explanation for the truck's transgression doubtful, noting the unchallenged statement of Bernard Muema showing reasonable steps were taken to detain the truck and the evidence of Mr. Wanjohi regarding the vehicle's insurance documents and departure from the yard. No evidence of prior misconduct was produced, so termination was disproportionate and harsh, rendering it unfair under Section 45 of the Employment Act.

p. 2
02

Whether the employer justified the dismissal on due process

Holding

The respondent's case did not withstand scrutiny; doubt was cast on the claimant's role

Reasoning

The respondent's witness attributed the transgression to the claimant and downplayed machine failure, but the claimant's show-cause response attached a colleague's statement the respondent never disputed, which together with the witness's own evidence about the vehicle leaving the yard created doubt about the claimant's culpability.

p. 2

Legal principles established

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  • The reason for termination is tested against what a reasonable employer would have done in the circumstances
  • A dismissal is unfair under section 45 of the Employment Act where termination is disproportionate to the infraction

Court orders

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  1. 1.Award of ten (10) months' salary, Kshs. 300,000/-, as compensation for unfair termination
  2. 2.Claimant to have costs of the suit
  3. 3.Decretal sum to attract interest at court rates from date of judgment until payment in full, subject to taxes and statutory deductions

Authorities

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Legislation

  • Employment ActSection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)

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, "Ann Wambui Ndirangu v Society Generale De Surveillance (Sgs) Kenya Limited [2019] KEELRC 859 (KLR)", Case Analysis (2019). Cause Number 1384 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/859/eng@2019-09-20

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