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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 1617 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Del Monte (K) Ltd [2019] KEELRC 1617 (KLR)

Employment and Labour Relations Court
20 May 2019
NMNzioki wa Makau
2,782 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Del Monte's dismissal of an employee for alleged bribe solicitation was upheld because it proved a genuine, investigated reason and followed fair disciplinary procedure.

What this practically means

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Executive summary

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The Claimant union sued on behalf of its member, Gerald Okiri Ogubi, a weighbridge clerk dismissed by the Respondent in February 2015 for allegedly soliciting a bribe from a customer whose lorry was carrying excess pineapple pulp. The Claimant alleged the Grievant had refused a bribe offered by the customer and was framed in retaliation, and that the dismissal violated Sections 41 and 45 of the Employment Act, including suspension before hearing and an inadequate hearing panel. The Respondent maintained the Grievant solicited the bribe, that investigations established culpability, that two stewards formed a quorum (later asserting five stewards were present), and that the dismissal fell under Section 44(4)(c) and (g) as summary dismissal on reasonable and sufficient grounds. At the hearing the Grievant testified that he insisted on payment or offloading of the excess and refused the customer’s bribe; the Respondent’s security manager recounted the customer’s complaint and the investigations. The court framed three issues: valid reason, fairness of procedure, and remedies. It held that the reason for termination is what the employer genuinely believed at the time, and that the Respondent discharged its burden, the customer’s receipt and statements supporting culpability despite the receipt not being produced. It also found the Section 41 safeguards met. The termination was thus held fair. However, the uncontroverted entitlements for 25 days worked and un-taken pro rata leave were awarded, with costs capped at Kshs. 20,000/-, interest, and statutory deductions applied. The balance of the claim was dismissed.

Key legal issues

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01

Whether there was a valid reason for the termination of the Grievant

Holding

The Respondent discharged the burden of proving that the reason for dismissal was valid

Reasoning

The Grievant was accused of soliciting a bribe from a customer to avoid re-weighing an overloaded truck. Investigations were carried out, statements were recorded and produced, and the customer and her driver were called to the disciplinary hearing where the Grievant could question them. Under the Employment Act, the reason for termination is what the employer genuinely believed to exist at the time. On that standard, the employer’s genuine belief in the misconduct was proven.

p. 2
02

Whether the Grievant’s termination was fair or unfair

Holding

The termination was fair, both substantively and procedurally, within the meaning of section 45 of the Employment Act

Reasoning

Section 41 safeguards were met: the Grievant was issued a suspension notice and a show cause notice, investigations were done, and he appeared before a disciplinary panel with stewards present, with witnesses heard and minutes produced in court. Two sittings were held. Substantively, a valid reason was proved. Accordingly, due procedure was followed and the dismissal was fair.

p. 3
03

Whether the Grievant is entitled to the remedies prayed for

Holding

Only payment for days worked (Kshs. 10,000/-) and pro rata leave (Kshs. 19,793.76), both subject to statutory deductions, plus capped costs and interest

Reasoning

Because the termination was found fair, the claims for notice pay and 12 months’ compensation fail. The uncontroverted facts that the Grievant worked 25 days and did not go on leave ground the awards for days worked and pro rata leave.

p. 3

Legal principles established

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  • An employer must have a valid reason touching on misconduct, poor performance or physical incapacity before terminating an employee, and must follow the procedure in Section 41 of the Employment Act
  • The reason for termination is what the employer genuinely believed to exist at the time of termination

Court orders

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  1. 1.Payment of Kshs. 10,000/- for the days worked
  2. 2.Payment of Kshs. 19,793.76 as pro rata leave
  3. 3.Costs of the suit capped at Kshs. 20,000/-
  4. 4.Interest on the sums for days worked and pro rata leave at court rates from the date of filing suit till payment in full
  5. 5.The sums for days worked and pro rata leave to be subjected to statutory deductions

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 44(4)(c) and (g)
  • Labour Relations ActNot specified (conciliation and referral of trade disputes)

Cases cited (2)

  • Banking Insurance and Finance Union (K) v Standard Chartered Bank of Kenya Ltd
    [2013] eKLR
  • William Kiaritha Gacheru v East African Packaging Industries Ltd
    [2016] eKLR
Jurisdiction invoked
Referral of a trade dispute under the Labour Relations Act following conciliation

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, "Kenya Union of Commercial, Food and Allied Workers v Del Monte (K) Ltd [2019] KEELRC 1617 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1617/eng@2019-05-20

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