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ELRCDismissedCause No 1392 of 2017· [2020] KEELRC 1050 (KLR)

Simon Wambua Nthiwa v Jubilee Insurance Company of Kenya Limited [2020] KEELRC 1050 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
14 May 2020
ANAbuodha Jorum Nelson
2,040 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 upheld an employee's dismissal over missing premium records, confirming employees bear the burden of proving their termination was unfair.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 30th January 1995 and serving as a check-off coordinator/Life Premium Collection Assistant, sued for unlawful and unfair termination following his dismissal on 25th May 2017. The dismissal arose from an investigation into fraudulent misallocation of premiums in the Life Department, in which member schedules allegedly failed to tally with data in the ISF system, benefiting non-members and renewing lapsed policies without premium payments, at a loss of about Kshs 9m. The claimant denied altering premium figures, said his role ended at collecting premiums and submitting schedules, and complained that the disciplinary process was malicious and lacking in due procedure. The respondent contended the claimant was responsible for collecting and verifying hard copy member schedules, that he could not produce the schedules he had submitted, and that the process complied with the Employment Act and its HR Policy Manual. The respondent's witnesses, including a Forensic Fraud Investigator, testified to the investigation findings, though the investigation report was not produced in court. The court held that the burden of proving unfair termination lay with the claimant; that premiums are at the core of the respondent's business; that the claimant's failure to produce the original schedules raised reasonable suspicion against him; and that valid reasons existed and the procedure followed was fair. The claim was dismissed with costs, but the respondent was ordered to pay the claimant his terminal benefits as stated in the termination letter dated 25th May 2017 if not already paid.

Key legal issues

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01

Whether the termination was for a valid reason

Holding

Yes - the claimant's failure to produce original member schedules raised reasonable suspicion of misconduct in a premium-handling role

Reasoning

The respondent is in insurance business where collection and proper allocation of premiums is at its core. Investigations revealed misallocation of premiums totalling about Kshs 9m. The claimant, who was responsible for collecting and verifying member schedules, could not produce the hard copy schedules he had submitted. His failure to do so justified the employer's reasonable belief that dismissal was warranted.

p. 3
02

Whether the disciplinary procedure was fair

Holding

Yes - the claimant was suspended, issued a show cause letter, responded, and was heard by a disciplinary committee

Reasoning

The claimant was sent on compulsory leave on 13th January 2017, issued a show cause letter on 15th March 2017 which sufficiently informed him of the allegations, responded on 17th March 2017, and attended a disciplinary hearing on 20th March 2017. The court was satisfied the process complied with the Employment Act and the respondent's HR manual.

p. 1

Legal principles established

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  • A reason for dismissal or termination must be facts or circumstances existing at the time of dismissal which the employer reasonably believed warranted dismissal
  • The burden of proving unlawful or unfair termination rests on the employee

Court orders

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  1. 1.The claim is dismissed with costs
  2. 2.The respondent to pay the claimant his terminal benefits as stated in the termination letter dated 25th May, 2017, if not already paid

Authorities

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Legislation

  • Employment ActNot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and relevant employment law (not expressly cited in the 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, "Simon Wambua Nthiwa v Jubilee Insurance Company of Kenya Limited [2020] KEELRC 1050 (KLR)", Case Analysis (2020). Cause No 1392 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1050/eng@2020-05-14

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