Patrick Lisutsa Masakhwi v Mogas Kenya Limited (Cause 501 of 2014) [2019] KEELRC 1767 (KLR)
The bottom line
#A Kenyan court ruled that an employer who suspends an employee for investigations must still give them a hearing before dismissal, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally fair
The dismissal was procedurally unfair; the respondent failed to afford the claimant a hearing after the investigations following his suspension, contrary to section 41 of the Employment Act, 2007.
The claimant was suspended on 10 December 2013 to allow investigations into fuel losses. Once investigations were complete, the employer was obliged under section 41 to invite him to a hearing on the findings before summarily dismissing him on 19 December 2013. No such hearing was held. The respondent therefore, despite having arguably justified reasons as at 10 December, breached the mandatory procedure, resulting in procedural unfairness.
Whether the dismissal was substantively justified
The grounds for dismissal were not sufficiently established; the fuel loss figures kept changing, and dismissing the claimant to recover unascertained losses was unfair and double punishment.
The amounts of fuel loss stated by the respondent varied from 3,355 litres to 4,500 litres to approximately 1,245 litres per the hydro test. The claimant had reported the leakage and a mechanical report attributed the loss to a leaking underground tank. The respondent had no counterclaim for the loss and no records supported deduction of terminal dues. Dismissing the claimant to pay unascertained approximate losses was unfair and a double punishment, though the claimant bore some blame for failing to report a 1,500-litre variance.
What remedies are due
Notice pay of Ksh.27,000.00 and unpaid salary of Ksh.71,100.00 awarded; gratuity refused; half salary during suspension subsumed in the December 2013 award.
With no records of payment of terminal dues, the claimant's salary for October, November and 19 days in December 2013 was due, computed at his last earnings of Ksh.27,000.00 per month. Notice pay of one month was due where termination followed no due process. Gratuity was not an agreed contractual term nor founded in law. The half-salary claim for the suspension period was addressed by the award for days worked in December 2013.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer (section 47(5), Employment Act).
- Before summary dismissal an employee must be given a hearing per section 41, and the employer must have valid and genuine reasons per section 43 of the Employment Act, 2007.
- An employer who suspends an employee to allow investigations must, upon completion, invite the employee to a hearing based on the findings; failure to do so renders the termination procedurally unfair.
- Terminating an employee to compel payment of fuel losses whose amounts were unascertained and approximate amounts to unfair termination and double punishment.
Court orders
#- 1.Judgment entered for the claimant against the respondent for notice pay of Ksh.27,000.00
- 2.Payment of unpaid salary of Ksh.71,100.00 (October, November and 19 days worked in December 2013)
- 3.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Lisutsa Masakhwi v Mogas Kenya Limited (Cause 501 of 2014) [2019] KEELRC 1767 (KLR)", Case Analysis (2019). Cause No. 501 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1767/eng@2019-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.