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ELRCPartially AllowedCause No. 295 of 2016· [2020] KEELRC 477 (KLR)

David Otieno Ogada v Bidco Africa Limited [2020] KEELRC 477 (KLR)

Employment and Labour Relations Court
16 September 2020
HWHellen S. Wasilwa
1,703 words in judgment
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The bottom line

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A Kenyan court upheld an employee's summary dismissal because he admitted misconduct in writing, but he still got his certificate of service.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a soap maker from 21/3/2006, was summarily dismissed on 17/7/2014 on grounds of gross misconduct after being accused of obtaining a cumulative bribe of Kshs. 11,030 by impersonating a Bidco recruitment officer. He sued seeking declarations that the termination was unlawful, payment of Kshs. 245,399 comprising salary in lieu of notice, unpaid annual leave, compensation for unfair loss of job and refund of union dues, a certificate of service, plus costs and interest. The Respondent defended the dismissal as justified under Section 44(4)(g) of the Employment Act, asserting the Claimant admitted the misconduct in writing, was paid all dues including untaken leave by cheque on 12/8/2014, and that union dues were lawfully deducted under Section 48(2) of the Labour Relations Act with refund claimable from the union. It also claimed a certificate of service had been issued on 10/6/2016. At trial, the Claimant admitted taking money and refunding Kshs. 25,000. The court found that under Section 43 of the Employment Act the Respondent had valid reasons for dismissal, and that a formal disciplinary hearing would have added little value given the Claimant's written admission of misconduct. The dismissal was held justified and fair. The claim was dismissed except for the prayer for a certificate of service, and the court made no order of costs. Judgment was delivered by Hon. Lady Justice Hellen Wasilwa on 16th September 2020.

Key legal issues

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01

Validity of the reasons for summary dismissal

Holding

The Respondent had valid reasons to dismiss the Claimant for gross misconduct, as the Claimant admitted in writing to obtaining money by false pretences and refunded the money

Reasoning

Section 43 of the Employment Act requires the employer to prove the reasons for termination. The Claimant admitted in a written reply to the show cause letter that he was arrested by police, paid back the money taken and more (Kshs. 25,000 though given Kshs. 5,000), and the complainant withdrew the case. His oral evidence conceded taking money from some people, which was refunded. The court found the reasons genuine and proven.

p. 3
02

Whether absence of a formal disciplinary hearing rendered the dismissal unprocedural

Holding

The dismissal was fair notwithstanding the absence of a formal disciplinary hearing because the Claimant admitted the misconduct in writing in response to a show cause letter

Reasoning

The Respondent indicated there was no need to take the Claimant through a formal disciplinary process since he was issued a show cause letter to which he replied admitting the misconduct. The court held that a disciplinary hearing would have added little value given the written admission, finding the dismissal justified and fair. The witness's concession that no notice to show cause was issued was outweighed by the produced written admission at page 7 of the Respondent's documents.

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03

Certificate of service

Holding

The Claimant is entitled to a certificate of service, which is the only relief allowed

Reasoning

Although the court dismissed the entire claim for lack of merit, it carved out the prayer for a certificate of service, which was not resisted on principle, with the Respondent averring that a Certificate of Service had already been issued on 10/6/2016.

p. 3

Legal principles established

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  • An employer must prove the reasons for termination, failing which the termination is deemed unfair under Section 45 of the Employment Act
  • A written admission of misconduct by an employee renders a formal disciplinary hearing of little value, justifying summary dismissal as fair and justified

Court orders

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  1. 1.The Claim is dismissed save for the prayer for issuance of a certificate of service
  2. 2.No order of costs

Authorities

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Legislation

  • Employment ActSection 43
  • Employment Act 2007Section 44(4)(g)
  • Labour Relations ActSection 48(2)

Cases cited (3)

  • Kenya Plantation & Agricultural Workers Union vs. Unilever Tea Kenya Limited
    [2016] eKLR
  • Samuel Ochieng Lango vs. Maya Duty Free Limited
    [2019] eKLR
  • Simon Karuga Waweru vs. Twiga Stationers Limited
    [Supra]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (Cause under the Court's employment jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "David Otieno Ogada v Bidco Africa Limited [2020] KEELRC 477 (KLR)", Case Analysis (2020). Cause No. 295 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/477/eng@2020-09-16

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