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ELRCPartially AllowedELRC Cause (Nairobi) filed 4/2/2015· [2020] KEELRC 913 (KLR)

Beth Nyawira Gathomi v Unilever Kenya Limited [2020] KEELRC 913 (KLR)

Employment and Labour Relations Court
28 May 2020
HWHellen Wasilwa
3,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled Unilever's dismissal of a procurement employee was procedurally unfair despite valid reasons, awarding her over KShs. 1.3 million.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1996 and last serving as an Assistant CAPEX/MRO buyer, was suspended on 28/10/2014 for alleged violation of the Respondent's Code of Business Principles, issued a show cause letter on 18/11/2014 containing nine broad allegations, largely concerning her dealings with a supplier, and dismissed on 9/12/2014 for gross misconduct. She challenged the termination, seeking a declaration of unfair termination, pension release, notice pay, salary arrears, leave dues, 12 months' compensation, costs and interest. The court framed three issues: whether there were valid reasons for dismissal, whether the disciplinary hearing was fair, and entitlement to remedies. On the first issue, the court found the Respondent genuinely believed and established valid reasons per the minutes of the disciplinary hearing, including fraudulent misquotation of a tender number. On the second, it found the process unfair: the charges were not laid out in advance, the Claimant's requests for the investigation report and access to her computer were ignored, contrary to Article 50 of the Constitution and section 41 of the Employment Act. The dismissal was therefore unfair under section 45(2). However, because valid reasons existed, the court awarded only 4 months' salary as compensation rather than the 12 months sought, together with 3 months' notice pay per the CBA, KShs. 18,000 leave allowance, December 2014 salary for 9 days, and 15 accrued leave days, totalling KShs. 1,314,347.17 less statutory deductions. The Respondent was ordered to pay costs with interest from the date of judgment.

Key legal issues

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01

Whether there were valid reasons to warrant the Claimant's dismissal

Holding

Yes - the Respondent established valid reasons as recorded in the minutes of the disciplinary hearing

Reasoning

Section 43(1) requires the employer to prove the reasons for termination, being matters the employer genuinely believed to exist at the time. From the minutes, the Respondent put its concerns about the Claimant's procurement conduct to her and she responded, and she was found culpable of serious misconduct, including fraudulently misquoting a tender number and misrepresenting the employer. The court found the Respondent believed and established these reasons.

p. 4
02

Whether the Claimant was subjected to a fair disciplinary hearing

Holding

No - the hearing was unfair because charges were not laid out in advance, the investigation report was withheld and the Claimant was denied access to her computer

Reasoning

The show cause allegations were broad and the Claimant's request for specificity, for the investigation report and for access to company records went unanswered. The hearing invitation did not lay down the charges. Under Article 50 of the Constitution an employee must know the charges in a clear and unambiguous manner. Being denied the charges, the investigation report and her computer deprived her of the ability to prepare her defence, tainting the process under section 41 and rendering the dismissal unfair under section 45(2).

p. 5
03

Whether the Claimant is entitled to the remedies sought

Holding

Partly - 4 months' compensation plus notice pay, leave allowance, December salary and accrued leave, subject to statutory deductions

Reasoning

Because valid reasons existed but the process was improper, the court exercised discretion under section 49 to award 4 months' salary as compensation instead of the 12 months sought. Notice pay was granted per the CBA, the KShs. 18,000 leave allowance per the Respondent's admission, and the December days worked and 15 accrued leave days as computed. Costs and interest followed the event.

p. 5

Legal principles established

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  • Under section 43 of the Employment Act, the employer must prove the reason or reasons for termination, and the reasons are those the employer genuinely believed to exist at the time of termination
  • An employee facing disciplinary proceedings is entitled to know the charges against her in advance, in a clear and unambiguous manner, and to be furnished with documents necessary to prepare her defence

Court orders

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  1. 1.4 months' salary as compensation for unfair dismissal (KShs. 664,793/=)
  2. 2.3 months' salary in lieu of notice (KShs. 498,594.99/=) as per the CBA
  3. 3.KShs. 18,000/= leave allowance as per the Respondent's admission
  4. 4.Salary for 9 days worked in December 2014 (KShs. 49,859.68/=)
  5. 5.Leave for 15 days unutilised leave (KShs. 83,099.50/=), less statutory deductions, totalling KShs. 1,314,347.17
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)
  • Constitution of Kenya 2010Article 50

Cases cited (2)

  • Rebecca Ann Mana and 2 Others vs. Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Peterson Ndung’u & 5 Others vs. Kenya Power and Lighting Company
    [2014] eKLR
Jurisdiction invoked
Sections 41, 43 and 45 of the Employment Act 2007; Article 50 of the Constitution

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, "Beth Nyawira Gathomi v Unilever Kenya Limited [2020] KEELRC 913 (KLR)", Case Analysis (2020). ELRC Cause (Nairobi) filed 4/2/2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/913/eng@2020-05-28

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