James Gitau Waweru & 3 others v China Railway No.10 Engineering Group Company [2020] KEELRC 1080 (KLR)

Section 44 of the Employment Act permits summary dismissal for gross misconduct, but section 41(2) imposes a mandatory obligation to hear the employee before dismissal where the misconduct is not admitted. The claimant was not allowed an opportunity to defend himself, so the termination was procedurally unfair. Notice pay follows the unprocedural termination, and there was no evidence of payment for the 13 days worked in October 2016.

Section 44(3), (4) and 44(4)(c) of the Employment Act allow summary dismissal where an employee carelessly or improperly performs duties, negligently or wilfully damaging the employer's property. The claimant's written admission of damaging motor vehicle KBQ 690C and payment of Ksh.21,000 for the damage warranted summary dismissal. Underpayment was not proved since his daily wage of Ksh.973 exceeded the applicable minimum wage of Ksh.655.80 for a mixer operator in Njoro.

Sections 30, 31 and 34 of the Employment Act protect a sick employee, but the employee has a mandatory duty to notify the employer of sickness-related absence and to produce a medical certificate from a qualified practitioner. The claimant produced no record of illness or medication. The respondent's case that he was found drunk and asleep at work was found more plausible on a balance of probabilities, justifying summary dismissal.

Even where an employee has grossly misconducted himself, section 41 of the Employment Act mandates an internal disciplinary process at the shop floor. Reporting the matter to Baraka Police Station and filing suit did not excuse the failure to hear the claimant; criminal and disciplinary proceedings serve different purposes. However, general damages is not a remedy under sections 45 and 49 of the Act, and there was no evidence of payment for August 2016 and the 10 days worked in September 2016, which were awarded.