Kenya Plantation & Agricultural Workers Union v Delmonte (K) Limited [2019] KEELRC 2211 (KLR)
The bottom line
#Kenya's Employment Court upheld Del Monte's dismissal of two workers over a multi-million shilling theft, ruling the employer followed fair procedure and had valid grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether the Grievants engaged in gross misconduct justifying summary dismissal
Yes. The 1st Grievant was the custodian of keys to the can plant from which copper wire worth Kshs. 8.6 million and electrical cable worth Kshs. 235,000/- were stolen, and the 2nd Grievant was the only forklift operator on site; the copper wire could only be moved by forklift, supporting the conclusion of a joint scheme
Applying sections 44(4)(c) and (g) of the Employment Act, the court found the 1st Grievant failed to diligently secure storage areas as store clerk and key custodian, and the 2nd Grievant gave contradicting accounts of his whereabouts. Since the stolen wire could only be lifted by forklift and the 2nd Grievant was the sole operator on site, the employer had sufficient grounds to suspect both Grievants of a joint scheme to steal.
Whether the termination was fair or unfair
The termination was fair in both procedure and reason
The court found the Grievants were issued show-cause notices, responded to them, and were taken through a disciplinary hearing where they appeared with a representative and tendered their defence, satisfying section 41. Under sections 43 and 45(2), the employer proved a valid and fair reason: both Grievants were on site at the time of the theft, had access to the can plant, and did not discount the case of dishonesty.
Whether the Grievants are entitled to the remedies sought
No. Having upheld the dismissal as justified, the Grievants were disentitled to reinstatement or damages
Because the court found the employer justified in terminating employment on grounds of gross misconduct, the Grievants could not avail themselves of remedies for unfair termination. Reinstatement without loss of benefits and alternative damages were accordingly refused and the suit was dismissed, with each party bearing its own costs.
Legal principles established
#- Summary dismissal is justified where the employee by his conduct has fundamentally breached his obligations under the contract of service, including where on reasonable and sufficient grounds the employee is suspected of committing a criminal offence against the employer's property
- Termination is unfair where the employer fails to prove a valid and fair reason and fair procedure, but an employer who conducts a disciplinary hearing with notice, response and representation satisfies the procedural safeguards
- Dismissal for dishonesty is justified where the misconduct strikes at the heart of the employment relationship, assessed by a contextual examination of the circumstances
Court orders
#- 1.The suit is dismissed
- 2.Each party to bear their own costs of the claim
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment disputes following failed conciliation before the Cabinet Secretary
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v Delmonte (K) Limited [2019] KEELRC 2211 (KLR)", Case Analysis (2019). Case No 44 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2211/eng@2019-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.