Musa Ndima Said &another; v Milly Glassworks Limited [2020] KEELRC 1441 (KLR)
The bottom line
#A Kenyan court awarded one dismissed employee 12 months' salary because his employer skipped the required disciplinary hearing, but upheld his colleague's dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Claimant's summary dismissal was lawful and fair
The dismissal was wrongful and unfair; the charge was not proved and the Claimant was not subjected to the Section 41 disciplinary process.
The court found no evidence that the charge of failure to report was placed before the 1st Claimant for response. Apart from recording a statement, he was not involved in the investigations. The Respondent's failure to subject him to the Section 41 disciplinary process, coupled with its decision not to call any live testimony, meant the accusations were not proved as required under Section 43 of the Employment Act. He was therefore entitled to compensation and notice pay.
Whether the 2nd Claimant's summary dismissal was lawful and fair
The dismissal was lawful; the Respondent had a valid reason and accorded him a hearing.
The 2nd Claimant admitted in writing to having irregularly raised gate pass No. 7934, passing it off as prepared by a former employee. He did not testify, so dishonesty could not be ruled out. Applying the 'reasonable responses test' endorsed by the Court of Appeal, the court found a reasonable employer could impose the sanction of summary dismissal, especially since the Respondent had called upon him to explain himself via a show cause memorandum before dismissal.
Whether the Claimants were entitled to severance pay and gratuity
The claims failed; no basis was laid for them.
Neither Claimant established an entitlement to severance pay or gratuity. The 1st Claimant sought severance pay at 15 days' pay per year of service and the 2nd Claimant sought gratuity, but the court found that no basis was laid for these heads of claim, and they were accordingly dismissed, leaving only compensation and notice pay for the 1st Claimant.
Legal principles established
#- An employer must subject an employee to the disciplinary process set out under Section 41 of the Employment Act and prove the accusations under Section 43; failure to do so renders the dismissal wrongful and unfair.
- Under the 'reasonable responses test', a court should not lightly interfere with an employer's sanction unless the employer acted unfairly in imposing it.
Court orders
#- 1.Judgment entered in favour of the 1st Claimant, Musa Ndima Said, in the sum of Kshs. 190,736, comprising 12 months' salary in compensation (Kshs. 176,064) and 1 month's salary in lieu of notice (Kshs. 14,672)
- 2.The said amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimants to be issued with certificates of service
- 4.The Respondent to pay the costs of the case
- 5.The 2nd Claimant's claim for wrongful and unlawful dismissal dismissed
- 6.The claims for severance pay and gratuity dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Cause proceedings for wrongful and unfair dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musa Ndima Said &another; v Milly Glassworks Limited [2020] KEELRC 1441 (KLR)", Case Analysis (2020). Cause No. 383 of 2017 (consolidated with Cause No. 826 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1441/eng@2020-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.