Nalichi A K Paul v Dhl Supply Chain (K) Limited [2020] KEELRC 1169 (KLR)
The bottom line
#A Kenyan court upheld a security supervisor's dismissal as fair, but ordered the employer to pay accrued leave and salary it couldn't prove it had paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for dismissal were valid and fair
The claimant's admitted late reporting on 6.9.2015 constituted a valid reason for summary dismissal under section 44(4)(a) of the Employment Act.
There was no dispute that the claimant reported late on 6.9.2015; only the extent of lateness was contested. The court held the admitted lateness was sufficient reason for summary dismissal under section 44(4)(a), which covers absence from the appointed place of work without leave or lawful cause. The intoxication and insubordination allegations did not need to be resolved on this basis.
Whether a fair procedure was followed
The respondent proved on a balance of probability that it followed a fair hearing: show cause letter, written response, disciplinary hearing, and appeal.
Section 41 requires the employer to explain the reasons and hear the employee's representations. The claimant was served a show cause letter, responded in writing, attended a disciplinary hearing, and appealed with a hearing. Although he disowned the signature on the minutes, he did not report forgery to the police, undermining his denial. Procedural fairness was therefore satisfied per Radido J's formulation in Patrick Abuga v ICPAK.
Whether the reliefs sought should be granted
Only accrued terminal dues (leave and September salary) were awarded; damages, reinstatement, certificate-of-service damages and severance were refused.
Having found the dismissal fair and lawful, the court declined reinstatement and section 49 damages. The certificate-of-service claim of Kshs. 100,000 failed for lack of legal basis since the law provides a fine against the employer, not employee damages. Severance failed because termination was not redundancy. However, the respondent produced no evidence of payment of terminal dues, so leave pay and salary for 18 days worked in September 2015 were awarded.
Legal principles established
#- Absence from the appointed place of work without leave or lawful cause is a justifiable ground for summary dismissal under section 44(4)(a) of the Employment Act.
- A show cause letter, a written response, a disciplinary hearing and an appeal hearing satisfy the procedural fairness requirements of section 41 of the Employment Act.
Court orders
#- 1.Judgment entered for the claimant for leave pay of Kshs. 52,900.00
- 2.Judgment entered for the claimant for salary for 18 days worked in September 2015 of Kshs. 43,947.70
- 3.Total award of Kshs. 96,847.70 subject to statutory deductions
- 4.Costs of the suit to the claimant
- 5.Interest at court rates from the date of filing suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 44(4) and 49 considered)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Anne Wairimu Nduta v Ukristo Na Ufanisi Was Anglicana Sacco Ltd [2021] KEELRC 2351 (KLR)[2021] KEELRC 2351 (KLR)11 Feb 2021
Cite this brief
#Cite this brief
Caselaw, "Nalichi A K Paul v Dhl Supply Chain (K) Limited [2020] KEELRC 1169 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1169/eng@2020-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.