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ELRCDismissedCause No. 56 of 2018· [2019] KEELRC 2270 (KLR)

George Okello Munyolo v Unilever Kenya Limited [2019] KEELRC 2270 (KLR)

Employment and Labour Relations Court of Kenya
1 February 2019
DMD. K. Njagi Marete
1,587 words in judgment
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The bottom line

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Kenya's Employment Court upheld Unilever's dismissal of an employee suspected of theft, but ordered the company to pay his terminal benefits after 28 years of service.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1990 as a casual labourer and later promoted to stores clerk grade II, was summarily dismissed on 18th December 2017 on allegations of conspiracy to steal two tonnes of sugar from the company. He filed a claim alleging unlawful and unfair termination, citing failure to conduct a proper investigation, denial of a fair hearing, breach of the respondent's code of conduct, discrimination and failure to adhere to the laws governing disciplinary processes. He sought a declaration that the termination was unlawful, retirement benefits, Kshs.527,000 in damages and a certificate of service. The respondent denied the claim, asserting that the claimant was summarily dismissed for stealing sugar after a disciplinary process, in compliance with the Employment Act, 2007. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. On the first issue, the court found the respondent had complied with sections 41, 43 and 44 of the Employment Act, 2007, and that under section 44(4)(g) an employer may summarily dismiss an employee suspected on reasonable and sufficient grounds of a criminal offence against the employer's property without conclusive proof. The claimant failed to discharge his burden of proof under section 47(5). The court accordingly found lawful termination and dismissed the claim. However, noting the claimant's twenty-eight years of service, the court ameliorated the harshness of summary dismissal by reducing it to ordinary termination, entitling the claimant to his terminal benefits under his employment contract. Costs were not expressly addressed in the final orders.

Key legal issues

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01

Whether the summary dismissal of the claimant was wrongful, unfair and unlawful

Holding

The court found lawful termination. The respondent demonstrated compliance with sections 41, 43 and 44 of the Employment Act, 2007, and the claimant failed to discharge his burden of proof under section 47(5).

Reasoning

The respondent established that the claimant was subjected to disciplinary action and found culpable of defiance of the Code of Business Principles for suspected theft of two tonnes of sugar. Reliance was placed on section 44(4)(g), permitting summary dismissal where an employee is on reasonable and sufficient grounds suspected of a criminal offence against the employer's property. The claimant failed to adduce evidence supporting unlawful termination and did not satiate his statutory burden of proof. The respondent's evidence overwhelmed that of the claimant.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

The claimant was not entitled to the relief sought, having failed to establish unlawful termination; however, in equity the court reduced the summary dismissal to ordinary termination to enable him to earn terminal benefits under his contract.

Reasoning

Noting the claimant's twenty-eight years of service (1990 to 8th December 2017), the court considered the fair and justifiable route to be amelioration of the damage occasioned by summary dismissal by reducing it to ordinary termination, thereby facilitating his entitlement to terminal benefits in terms of his contract of employment. The declaration of unlawfulness and the quantified damages were refused.

p. 3

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer, per section 47(5) of the Employment Act, 2007.
  • Under section 44(4)(g) of the Employment Act, 2007, an employer may summarily dismiss an employee on reasonable and sufficient grounds of suspicion of a criminal offence against the employer's property, without conclusive proof of involvement.

Court orders

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  1. 1.The claim is dismissed with a rider that the summary dismissal of the claimant be and is hereby reduced to a mere termination of employment.
  2. 2.The claimant becomes entitled to his entire terminal benefits in accordance with his terms of employment contract.

Authorities

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Legislation

  • Employment Act, 2007section 44(1)
  • Employment Act, 2007section 44(4)(c)
  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47(5)

Cases cited (2)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd
    Industrial Court Cause No. 66 of 2012
  • Thomas Sila Nzivo vs Bamburi Cement Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim of unlawful termination of employment under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Okello Munyolo v Unilever Kenya Limited [2019] KEELRC 2270 (KLR)", Case Analysis (2019). Cause No. 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2270/eng@2019-02-01

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