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ELRCPartially AllowedCause No 125 of 2015· [2020] KEELRC 926 (KLR)

Ruth Adhiambo Apindi v Unilever Kenya Limited [2020] KEELRC 926 (KLR)

Employment and Labour Relations Court of Kenya
28 May 2020
HWHellen Wasilwa
5,712 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee compensation after finding her dismissal was based on hearsay and an unfair hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1st February 2011 and last serving as Assistant Procurement Manager, was suspended on 28th October 2014 pending investigations into alleged violation of the Respondent's Code of Business Principles. She was issued a Notice to Show Cause on 18th November 2014, responded on 21st November 2014, attended a disciplinary hearing on 27th November 2014, and was summarily dismissed on 9th December 2014 for gross misconduct. She sued for a declaration of unfair termination, release of her pension, notice pay, salary arrears, accrued leave and twelve months' compensation. The Respondent defended the dismissal as lawful and counterclaimed for Kshs. 1,871,908.75 under an underwriting agreement for a car loan. The court framed four issues: valid reasons for dismissal, fairness of the hearing, the Counter Claim, and remedies. It found no proof that the Claimant received bribes; the case rested on hearsay from a whistle blower (Beatrice) never called as a witness, and the investigation report was withheld. The hearing thus fell below the standard required under Sections 41 and 43 of the Employment Act. The dismissal was unfair under Section 45(2). The Counter Claim was proved by the Claimant's own admission. The court awarded one month's notice pay, nine months' compensation, 18 days' leave and December 2014 arrears totalling Kshs. 2,545,939, offset by the Counter Claim to leave Kshs. 674,030.35 less statutory deductions; the Claimant was freed to collect her pension, and 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

No valid reasons were proved; allegations of receiving bribes rested on hearsay from a person never called as a witness and no proof of the bribe was provided

Reasoning

Section 43(1) requires the employer to prove the reason for termination. The employer's belief in the reason must be demonstrated through tangible evidence. The claimant denied receiving bribes; the alleged bribe-giver (Beatrice/Glimmer Media Limited) was not called at the disciplinary hearing or in court, and the investigation report was never disclosed. Consequently the Respondent failed to prove the validity of the reasons relied upon.

p. 7
02

Whether the Claimant was accorded a fair disciplinary hearing

Holding

A hearing took place but was procedurally unfair because the Claimant was denied the investigation report and other documents needed to defend herself

Reasoning

Although the Claimant attended a disciplinary hearing as envisaged by Section 41, she requested the investigation report which formed the basis of the proceedings and was told she could not have it. The hearing proceeded without her being supplied with the necessary documents, and the whistle blower's statement was not shared with her, falling below the legal standard of a fair hearing.

p. 8
03

Whether the Counter Claim is proved

Holding

Proved; the Claimant admitted owing Kshs. 1,871,908.75 under the car loan underwriting agreement and this was set off against her award

Reasoning

The Claimant conceded on cross-examination that she was indebted to the Respondent for the car loan of Kshs. 1,871,908.75 and said she would pay when able. The court therefore found the Counter Claim proved and deducted the amount from the total award rather than entering separate judgment with interest.

p. 8
04

Whether the Claimant is entitled to the remedies sought

Holding

Partially; awarded notice pay, 9 months' compensation, accrued leave and December 2014 arrears, and liberty to collect her pension; refused 12 months' compensation

Reasoning

Finding the dismissal unfair under Section 45(2), the court exercised discretion to award one month's salary in lieu of notice (despite gross misconduct being unproved), nine months' gross salary as compensation, 18 accrued leave days and December 2014 salary arrears, less the proved Counter Claim, and declared the Claimant free to collect her pension.

p. 8

Legal principles established

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  • Under Section 43(1) of the Employment Act, the employer bears the burden of proving the reason(s) for termination, and the existence of the reason must be demonstrated through tangible evidence
  • A disciplinary hearing conducted without supplying the employee with the documents relied upon, including the investigation report, falls below the standard required under Section 41 of the Employment Act
  • Hearsay allegations by an absent accuser cannot sustain a summary dismissal

Court orders

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  1. 1.Award of 1 month salary in lieu of notice of Kshs. 233,779.95
  2. 2.Award of 9 months' salary as compensation for unfair dismissal, Kshs. 2,104,019.55
  3. 3.Award of 18 days leave outstanding at termination, Kshs. 140,268
  4. 4.Award of salary arrears for December 2014, Kshs. 67,871.60
  5. 5.Total award of Kshs. 2,545,939 less the Counter Claim of Kshs. 1,871,908.75 leaving Kshs. 674,030.35 payable, less statutory deductions
  6. 6.The Claimant is free to collect her pension
  7. 7.The Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 44(4)(e)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 47
  • Employment Act, 2007Section 90

Cases cited (12)

  • David Wanjau Muhoro Vs Ol Pajeta Ranching Limited
    (2014)
  • Rebecca Ann Maina & 2 Others Vs Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • Banking Insurance & Finance Union (Kenya) Vs Co-operative Bank of Kenya
    (2015) eKLR
  • Mary Chemweno Kiptui Vs Kenya Pipeline Company Limited
    (2014) eKLR
  • Howard Andrew Nyerere Vs Kenya Airways Limited
    (2014) eKLR
  • Agnes Kavata Mbiti Vs Housing Finance Company Limited
    (2017) eKLR
  • Dock Workers Union Vs Kenya Ports Authority
    (2015) eKLR
  • Judicial Service Commission Vs Gladys Boss Shollei & Another
    (2014)
  • Nazareno Kariuki Vs Feed the Children Kenya
    (2013) eKLR
  • Staff Pension Fund & Kenya Commercial Bank Staff Retirement (DC) Scheme 2006 & Another Vs Ann Wangui Ngugi & 524 Others
    (2014) eKLR
  • CMC Aviation Limited Vs Mohammed Noor
    (2015) eKLR
  • John Kinyanjui Gateru Vs Family Bank Limited
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims under Article 162(2) of the Constitution and the Employment Act, 2007 (not expressly cited in the extracted judgment)

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, "Ruth Adhiambo Apindi v Unilever Kenya Limited [2020] KEELRC 926 (KLR)", Case Analysis (2020). Cause No 125 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/926/eng@2020-05-28

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