Emmanuel Kasandi Mujukane & another v Cosmos Limited [2020] KEELRC 1716 (KLR)
The bottom line
#A Kenyan court ruled two pharmacists were fairly dismissed because their employer proved valid reasons and followed proper disciplinary procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the procedure for termination complied with Section 41 of the Employment Act
Procedure was fair; notices to show cause, disciplinary hearing minutes signed by the Claimants and presence of union representatives were proved
The Respondent produced the Notices to Show Cause letters, minutes of the disciplinary hearings and termination letters. Both Claimants admitted in testimony that they attended disciplinary hearings in the presence of union representatives and signed the minutes. The court held that to that extent procedural fairness as required by Section 41 was accorded, satisfying the fair-hearing requirement secured by the legislature.
Whether there were valid and justifiable reasons for termination under Sections 43 and 45
Yes; the Respondent justified the grounds under Section 47(5) by showing the Claimants breached their contracts by engaging in a competing business and handling drugs without certification
The Claimants admitted agreeing to assist Mary Mwendia sell drugs for a fee, without permission and without the requisite government certificate, breaching contract clauses requiring ethics and observance of the Pharmacy and Poisons Law and the duty of fidelity. The Respondent reasonably believed valid grounds existed, discharging the Section 43 burden on a balance of probabilities.
Whether the Claimants were entitled to 12 months' salary as compensation
No; compensation is contingent on a finding of unfair termination, which the court declined to make
Having found both procedural fairness and valid reasons, the court concluded the termination was not unfair. Since compensation and damages flow only from a finding of unfairness under Section 45, neither compensation nor damages were available, and the claims were dismissed with no order as to costs.
Legal principles established
#- An employer who produces notices to show cause, minutes of disciplinary hearings and termination letters, and before whom the employee admits attending a hearing with union representation, has accorded procedural fairness under Section 41 of the Employment Act.
- The burden lies on the employer under Section 43 to prove justifiable grounds for termination, failing which the termination is unfair under Section 45.
- Compensation is payable only where the court finds the termination unfair.
Court orders
#- 1.The claims are dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; suit filed as Industrial Court cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel Kasandi Mujukane & another v Cosmos Limited [2020] KEELRC 1716 (KLR)", Case Analysis (2020). Not stated in judgment (Employment and Labour Relations Court claim filed 14 May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1716/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.