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ELRCPartially AllowedCause No. 475 of 2015· [2020] KEELRC 783 (KLR)

Alex Mwangi Irungu v Safaricom Limited [2020] KEELRC 783 (KLR)

Employment and Labour Relations Court
26 June 2020
MOMaureen Onyango
3,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court converted a Safaricom worker's summary dismissal into normal termination, awarding notice pay and reversing disputed deductions.

What this practically means

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Executive summary

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The Claimant, a Customer Care Representative (later Customer Experience Executive) employed by Safaricom Limited from November 2007, was summarily dismissed by letter dated 5 December 2014 for neglecting to perform his work. The Respondent's Ethics and Compliance investigations found he had unauthorisedly engaged the Not Ready functions NR 711 and NR 712 in April and May 2014, preventing calls from being routed to him and costing the Respondent 37.15 person-hours, approximately five working days. The Claimant contended the NR functions were never clearly explained or distinguished in training, the system was flawed and later withdrawn, the disciplinary process was pre-determined and cosmetic, and the investigation report was never availed to him. He sought a declaration of unfair dismissal, one month's pay in lieu of notice, twelve months' compensation, unpaid leave days, the five deducted days, and costs. The Respondent maintained the dismissal was substantively and procedurally fair, that the Claimant admitted the conduct, and that he failed to exercise his appeal right. Applying Sections 41, 45 and 47(5) of the Employment Act and the Evidence Act on burden of proof, the court found valid reason for dismissal and a compliant procedure, but faulted the Respondent's delay from April to September 2014, the system issue flagged in its own investigation report, and the withdrawal of the two functionalities, concluding employees had not been properly clarified on their use. The court reduced the summary dismissal to normal termination, awarded notice and terminal benefits, reversed the deduction of the five days as amounting to double jeopardy, and made no orders for costs.

Key legal issues

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01

Whether the dismissal was substantively and procedurally fair

Holding

There was valid reason to dismiss the claimant and the procedure accorded with Section 41 of the Employment Act, but the delay in acting and the employer's failure to clarify the NR functionalities justified reducing summary dismissal to normal termination.

Reasoning

The court applied Sections 45 and 41 of the Employment Act and found the employer proved a valid reason (unauthorised use of NR 711 and 712 causing loss of 37.15 person-hours) and followed fair procedure including a disciplinary hearing. However, the employer took from April to September 2014 to act, its own investigation report flagged a system issue later fixed, and the functionalities were withdrawn. The employer had not properly clarified the use of the NR functions, as many employees believed their use would not affect performance scores.

p. 4
02

Whether the deduction of 5 working days from terminal dues was lawful

Holding

The deduction was reversed as it did not fall within authorised deductions and amounted to double punishment.

Reasoning

The court held the claimant was not absent from work in the manner contemplated by Section 19(1)(c) of the Employment Act on authorised deductions. Since the claimant had already lost his job over the same 37.15 person-hours issue, deducting a further five days' pay from his terminal dues constituted double punishment and could not stand.

p. 4
03

Allocation of the burden of proof

Holding

The burden of proving the termination was warranted lay on the Respondent under Sections 107, 108 and 109 of the Evidence Act.

Reasoning

The court invoked Section 107 of the Evidence Act (he who asserts must prove), Section 108 (burden lies on the person who would fail if no evidence were given) and Section 109 (proof of a particular fact lies on the person wishing the court to believe in its existence). On this basis the Respondent bore the burden of justifying the termination, which it discharged as to valid reason and procedure, but not as to the deduction of the five days.

p. 4

Legal principles established

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  • The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer.
  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness.
  • Deductions from terminal dues that amount to double punishment for conduct already punished by dismissal are impermissible.

Court orders

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  1. 1.Summary dismissal reduced to normal termination on notice
  2. 2.Claimant entitled to notice and other terminal benefits
  3. 3.Reversal of the deduction of the 5 working days from the claimant's terminal dues
  4. 4.No orders for costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Employment ActSection 5(7)(c)
  • Employment ActSection 19(1)(c)
  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Evidence ActSection 107
  • Evidence ActSection 108
  • Evidence ActSection 109
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Grace Gacheri Muruthi v Kenya Literature Bureau
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Judicial Service Commission v Gladys Boss Shollei and Another
    [2014] eKLR
  • Nampak Corrugated Wapevjlle v Khoza
    (Ja 14/98) [1998] Zalac 24
  • Samsung Electronics East Africa Ltd v K M
    [2017] eKLR
  • CFC Stanbic Bank Limited vs. Danson Mwashako Mwakuwona
    [2015] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Alex Mwangi Irungu v Safaricom Limited [2020] KEELRC 783 (KLR)", Case Analysis (2020). Cause No. 475 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/783/eng@2020-06-26

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