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ELRCDismissedCause No. 58 of 2019· [2020] KEELRC 1054 (KLR)

Peter Njuguna Chege v Timsales Limited [2020] KEELRC 1054 (KLR)

Employment and Labour Relations Court of Kenya
27 April 2020
MMM. Mbaru
2,509 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 ruled that a retirement notice cannot be used to escape discipline for striking, and dismissed the employee's benefits claim entirely.

What this practically means

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Executive summary

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The claimant was employed by the respondent from 1 October 1997 as a general worker, later a machine operator, at a last wage of Ksh.28,567 per month. On 25 July 2018 he and fellow employees engaged in an unprotected strike over delayed wages; he never resumed duty. His union's suit in Nairobi ELRC Cause No.1282 of 2018 was dismissed on 21 June 2019, with the court holding that the employees had engaged in an unprotected strike and that the respondent was at liberty to proceed with disciplinary process under the CBA and the Employment Act. The claimant then sought to retire voluntarily under clause 10 of the CBA, delivering his retirement notice to a labour officer and later by email after the respondent refused to receive it. He claimed retirement benefits/gratuity of Ksh.515,805, leave pay, compensation under article 23(3)(e) of the Constitution, a certificate of service and costs. The respondent, through its human resource manager, maintained the claimant deserted work, participated in destruction of property, ignored notices to show cause and skipped disciplinary hearings, and that the retirement notice was an afterthought to escape discipline. The court, M. Mbaru J, framed two issues: whether the termination violated the constitution and law, and whether retirement benefits were payable. Relying on the Nairobi ruling and precedent that an employee who squanders internal grievance mechanisms cannot claim unfair treatment, the court held the claimant authored his own termination and that a retirement notice cannot sanitise gross misconduct. The claims were dismissed with costs to the respondent; only a Certificate of Service under section 51 and an administrative NSSF letter were directed. Judgment was delivered electronically on 27 April 2020 pursuant to COVID-19 directions.

Key legal issues

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01

Whether the termination of employment violated the constitution and the law

Holding

No violation; the claimant authored his own termination

Reasoning

The claimant last attended work on 25 July 2018 during an unprotected strike, a finding already made by the court in Nairobi Cause No.1282 of 2018. He declined to respond to the notice to show cause and skipped two disciplinary hearings despite invitations. By refusing to attend and show cause, he placed himself up for summary dismissal and squandered the chance for a hearing. His retirement notice issued after the Nairobi ruling was an afterthought that could not sanitise gross misconduct.

p. 3
02

Whether the claimant should be paid retirement benefits (gratuity, leave)

Holding

Refused; the claimant cannot benefit from his own gross misconduct

Reasoning

The claimant sought gratuity of 21 days per completed year and leave pay under the CBA. The court found he authored his own termination by absconding during an unprotected strike and refusing the disciplinary process, which the Nairobi ruling had directed him to undergo. Allowing the retirement notice to stand would sanction and reward misconduct. Only a Certificate of Service under section 51 and an administrative NSSF letter were directed.

p. 4

Legal principles established

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  • An employee who squanders the internal grievance handling mechanisms provided for by the employer cannot claim to have been unfairly treated
  • A retirement notice cannot be used to sanitise gross misconduct
  • It is not the role of the Court to supervise internal grievance handling processes between employers and employees

Court orders

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  1. 1.The claims made are found without merit and are dismissed
  2. 2.The respondent is awarded costs
  3. 3.A Certificate of Service should issue in accordance with section 51 of the Employment Act, 2007
  4. 4.Where the claimant requires a letter to the NSSF to access his work benefits, a request to the respondent ought to issue and be addressed administratively
  5. 5.Judgment delivered electronically via e-mail in line with COVID-19 directions
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution (article 23(3)(e) invoked in the relief sought)

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, "Peter Njuguna Chege v Timsales Limited [2020] KEELRC 1054 (KLR)", Case Analysis (2020). Cause No. 58 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1054/eng@2020-04-27

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