Moses Gachihi Wathira v SGS Kenya Limited [2019] KEELRC 1737 (KLR)
The bottom line
#A Kenyan employer lost an unfair dismissal case because it never gave the employee an oral hearing or proof of the allegations.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for termination were valid and fair
The respondent failed to substantiate the allegations of conspiracy because it called no witnesses; the auditor who made the allegations should have testified; the claimant's evidence that he was dismissed for matters outside his job description was unrebutted
The show cause and termination letters alleged conspiracy to allow trucks to bypass the weighbridge. The respondent adduced no evidence; the auditor who made the allegations did not testify, leaving the allegations unsubstantiated. The respondent also failed to prove the claimant's job description included census duties or that he could simultaneously inspect vehicles and prevent transgressions. The burden under sections 43, 45(2) and 47(5) was therefore not discharged.
Whether the procedure followed was fair under section 41 of the Employment Act
A show cause letter and written reply do not amount to the fair hearing mandated by section 41; an oral hearing with a fellow employee or union representative present is required unless the employee admits the offence or waives the right
Section 41(1) and (2) require the employer to explain the reasons and hear and consider the employee's representations, with another employee or shop floor union representative present. The claimant was only given about 3 hours to respond in writing and was never invited to an oral hearing. The respondent's submission that written hearing suffices was rejected; the court followed its own interpretation in Mary Chemweno Kiptui v Kenya Pipeline Company Limited.
Whether the reasonable-employer test was met
On a preponderance of evidence, a reasonable employer in the circumstances would not have dismissed the claimant
Applying the British Leyland UK Ltd v Swift band-of-reasonableness test as adopted in Sarah Wanyaga Muchiri v Henry Kathii & Another, the court was satisfied that no reasonable employer would have dismissed the claimant given the unsubstantiated allegations, the ambiguity of his dual roles, and the failure of procedure.
Entitlement to reliefs
Notice pay, 3 months' compensation, pleaded salary for days worked, pro rata statutory leave, remittance of statutory deductions and a proper certificate of service were awarded; remainder-of-contract salary and special damages were refused
Having found unfair termination, the court exercised its discretion under section 49(1) to award one month's notice and 3 months' compensation, considering the short service period. Leave was computed at the statutory minimum of 1.75 days per month for 6 months. The contract's notice clause defeated the remainder-of-term claim, and the NHIF medication claim failed as unproven special damages.
Legal principles established
#- An employer bears the burden of proving valid and fair reasons and fair procedure under sections 43, 45(2) and 47(5) of the Employment Act; failure to call evidence means unchallenged allegations against the employee remain unsubstantiated
- A notice to show cause alone does not satisfy the mandatory oral hearing requirement of section 41 of the Employment Act
- The test for valid and fair reason is whether a reasonable employer would have dismissed the employee, per British Leyland UK Ltd v Swift
Court orders
#- 1.Judgment entered for the Claimant: one month's salary in lieu of notice KShs. 40,000.00
- 2.Compensation of 3 months' gross salary (KShs. 120,000.00) for unfair and unjustified termination under section 49(1) of the Employment Act
- 3.Salary for 8 days worked in June 2013 - KShs. 5,000.00 as pleaded
- 4.Leave earned - KShs. 16,153.85 (10.5 pro rata statutory leave days)
- 5.Total award of KShs. 181,153.85 subject to statutory deductions, plus costs and interest at court rates from the date of judgment
- 6.Respondent to remit withheld NSSF and NHIF contributions to the relevant government departments forthwith
- 7.Respondent directed to issue a proper Certificate of Service under its letterhead or bearing its official stamp
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45, 47(5), 49(1) and 51 applied)
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.
- Anne Karoki v Kenya Hospital Association t/a The Nairobi [2022] KEELRC 280 (KLR)[2022] KEELRC 280 (KLR)21 Apr 2022applied
Cite this brief
#Cite this brief
Caselaw, "Moses Gachihi Wathira v SGS Kenya Limited [2019] KEELRC 1737 (KLR)", Case Analysis (2019). Cause No 1042 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1737/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.