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ELRCDismissednot stated in judgment (Memorandum of Claim filed 9th April 2018)· [2019] KEELRC 2305 (KLR)

George Murangiri Chabari v Malindi Management Strategy Limited [2019] KEELRC 2305 (KLR)

Employment and Labour Relations Court

13 February 2019

LNLinnet Ndolo

1,647 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan employee who refused to cooperate in his own disciplinary process lost his entire unfair dismissal claim and now owes his ex-employer legal costs.

What this practically means

Executive summary

The Claimant, employed by the Respondent from 2007 and risen to Security Team Leader, was summarily dismissed on 17th August 2016 (effective 15th August 2016) for negligence of duty after allegedly allowing prostitutes into the Respondent's parking area, invoking Section 44(c) of the Employment Act. He claimed reinstatement or, in the alternative, notice pay, service pay, compensation for unfair termination, damages for loss of employment, costs and interest. The Respondent admitted the employment and dismissal but maintained the Claimant was accorded a fair hearing, having refused to record a statement or sign the disciplinary recommendation, attempted to resign, and admitted before a seven-member disciplinary committee that he did not perform his duties. The Court framed two issues: whether the Claimant made out a case for wrongful dismissal, and whether he was entitled to the remedies sought. Applying Section 47(5) of the Employment Act, the Court held the Claimant's refusal to record a statement was unjustified and thwarted the disciplinary process; an employee is not at liberty to decline to participate in a disciplinary process. The Claimant attended the disciplinary meeting and no evidence showed denial of his Section 41 rights. The Court, reviewing the process for lawfulness and fairness, declined to substitute its own view. The claim for compensation and notice pay failed, no basis was laid for service pay, and the entire claim was dismissed with costs to the Respondent.

Key legal issues

Whether the summary dismissal for negligence of duty was wrongful

Holding

The dismissal was not wrongful; the Claimant thwarted the disciplinary process by refusing to record a statement and the Respondent accorded him his Section 41 rights

Reasoning

The Claimant was accused of negligence, a recognizable administrative offence requiring proof through a disciplinary process. He refused to record a statement, reasons which the Court found invalid, and his behaviour did not aid the disciplinary process. He nevertheless attended the disciplinary meeting of 15th August 2016, and no evidence showed denial of his rights under Section 41 of the Employment Act. Having thwarted the process, he cannot complain of unfairness.

p. 3

Whether the Claimant was entitled to the remedies sought

Holding

All remedies refused; the entire claim dismissed

Reasoning

Compensation and notice pay failed because wrongful dismissal was not established. Service pay failed because no basis was laid for it. The Court awarded nothing to the Claimant and granted costs to the Respondent.

p. 3

Legal principles established

An employee is not at liberty to decline to participate in a disciplinary process; any grievances must be raised with the employer
The Court reviews disciplinary processes for lawfulness and fairness and will not substitute its own view for the employer's where the process was fair and reasonable

Court orders

1.The Claimant's entire claim fails and is dismissed with costs to the Respondent

Authorities

Legislation

Employment ActSection 44(c)
Employment Act, 2007Section 47(5)
Employment ActSection 41

Cases cited (1)

Mary Wagikuyu Komu v The Kenya Hospital Association T/A The Nairobi Hospital
[2016]

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and wrongful dismissal claim)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "George Murangiri Chabari v Malindi Management Strategy Limited [2019] KEELRC 2305 (KLR)", Case Analysis (2019). not stated in judgment (Memorandum of Claim filed 9th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2305/eng@2019-02-13

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