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ELRCPartially AllowedCause No. 256 of 2017· [2020] KEELRC 1595 (KLR)

Allan Bilabili Kilaini v Woolmatt Limited [2020] KEELRC 1595 (KLR)

Employment and Labour Relations Court of Kenya
23 January 2020
2,397 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 an employee's dismissal unfair because the employer never shared the workplace rules he allegedly broke.

What this practically means

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Executive summary

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The claimant, employed by the respondent supermarket from November 2000 and latterly as a general labourer/general clerk, was summarily dismissed on 17th December 2016 for allegedly operating the PDQ machine without authority and obtaining Ksh.4,500 cash on 12th December 2016, captured on CCTV. He claimed underpayments, service pay, leave, overtime, notice pay, December 2016 pay, bonus, compensation and a certificate of service. The respondent defended the dismissal as gross misconduct for breach of undocumented rules restricting PDQ machine use to authorised employees, and relied on witnesses including the branch manager, Okumu, Irene Nduta and the human resource officer. The court held that although the claimant did not deny using the PDQ machine, the respondent failed to produce or prove the rules and regulations allegedly breached, and neither the manager nor the HR officer could explain them; the employer was under a duty to communicate workplace conduct rules. The reasons for termination therefore lacked reasonable cause and validity, amounting to unfair termination contrary to section 45 of the Employment Act, 2007. Compensation was limited to one month's gross wage (Kshs. 14,844.00) because of the claimant's record of misconduct. All other heads of claim were dismissed: final dues of Ksh.207,710 (including service pay, leave, overtime, notice, bonus and December salary) had already been paid; the underpayment claim failed for want of written change of employment particulars; and the certificate of service had issued. Each party was ordered to bear own costs.

Key legal issues

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01

Whether the reasons for termination were valid and fair under sections 43 and 45 of the Employment Act

Holding

The termination was unfair because the alleged rules breached were not documented or issued to employees, so the reason lacked reasonable cause and validity.

Reasoning

The claimant did not deny using the PDQ machine to access cash; his defence was that it was general practice and he encashed the balance receipt at the cashier. The respondent failed to produce the rules and regulations governing PDQ machine use, and both the manager and the human resource officer could not explain them. Section 12 and section 45 of the Employment Act required the employer to communicate workplace conduct rules. Consequently the reasons lacked validity and the termination was unfair under section 45.

p. 3
02

Quantum of compensation under section 45(5)

Holding

Compensation limited to one month's gross wage of Kshs. 14,844.00 due to the claimant's litany of misconduct during employment.

Reasoning

Under section 45(5) the court considered the work history; the claimant had a litany of misconduct during employment, justifying a reduced award of one month's gross wage rather than the statutory maximum of twelve months.

p. 3
03

Underpayment claim

Holding

Rejected; no written change of employment particulars, so the claimant remained a general labourer paid per Wage Orders.

Reasoning

Sections 10 and 13 of the Employment Act place the duty on the employer to keep work records and issue written details of changes. The respondent asserted the claimant was always a general labourer. Without any written statement of change of job title, and given payment statements showed payment in tandem with Wage Orders, the claim of underpayment lacked justification.

p. 4

Legal principles established

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  • An employer bears the burden of proving a valid and fair reason and fair procedure for termination; the employer must bring disciplinary rules and regulations to the attention of employees.
  • Where disciplinary rules are not documented or issued to employees, the employer fails to justify discipline based on breach of such rules.
  • A claim of underpayment fails without proof of a written change of employment particulars where the employer maintains records showing payment per Wage Orders.

Court orders

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  1. 1.Compensation for unfair termination assessed at one month's gross wage of Kshs. 14,844.00
  2. 2.Dismissal of all other claims (underpayments, service pay, leave, overtime, notice pay, December 2016 pay, bonus, certificate of service) as without merit
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45 (including 45(2) and 45(5))
  • Employment Act, 2007Section 12
  • Employment Act, 2007Section 10 and 13

Cases cited (3)

  • Moses Daniel Kyalo versus Trendsetters Tyres Limited
    [2019] eKLR
  • Lydiah Wambui Wahome versus 2NK Sacco Society Limited & Another
    [2017] eKLR
  • Liz Ayany versus Leisure Lodges Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and employment dues)

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, "Allan Bilabili Kilaini v Woolmatt Limited [2020] KEELRC 1595 (KLR)", Case Analysis (2020). Cause No. 256 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1595/eng@2020-01-23

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