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ELRCDismissedNot stated in the judgment· [2020] KEELRC 1732 (KLR)

John Ogweno Awaa v Mackenzie Maritime [E.A] Limited [2020] KEELRC 1732 (KLR)

Employment and Labour Relations Court
7 February 2020
2,496 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 upheld a supervisor's dismissal for gross negligence because the employer followed a model fair disciplinary process, dismissing all his claims.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as Transport Supervisor from 29th November 2011, was summarily dismissed on 3rd January 2017 following the disappearance of a Truck carrying a container of medicines on the night of 14th/15th November 2016. He was accused of negligence and dereliction of duty, having left the workplace to collect a parcel from Coast Bus Station, failed to verify the Truck's availability before assigning it to a day shift Driver, delayed reporting the loss to Management until 3.45 p.m., and failed to utilise the tracking device installed on the Truck. The Truck was recovered minus its contents. The Claimant sought notice pay, compensation of up to 12 months' wages, overtime, pension benefits, and anticipatory salary up to the age of 60. The Respondent maintained the dismissal was justified and the procedure fair. The Court found the Claimant acted negligently and that his conduct amounted to gross negligence justifying dismissal under Section 44para 4[c] of the Employment Act, read with Sections 43 and 45. The disciplinary procedure - investigation, suspension, show-cause letter, hearing with a companion of choice, reasoned dismissal letter and appeal - was held to be fair and in accordance with Sections 41 and 45 of the Employment Act. The Court described the process as a model fair termination process. All heads of relief were declined: notice and compensation were unavailable because the dismissal was justified; the overtime claim failed because the contract's consolidated salary clause covered extra hours; the pension prayer was treated as withdrawn as pension had been paid; and anticipatory salary to retirement was refused as there was no factual or legal basis and compensation is the proper remedy for unfair termination. The Claim was dismissed with no order on the costs.

Key legal issues

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01

Justification of termination for gross negligence

Holding

The termination was justified under Section 44para 4[c] of the Employment Act, read with Sections 43 and 45 of the Act, on the ground of gross negligence.

Reasoning

The Claimant, a Transport Supervisor, failed to ascertain the physical availability of the Truck before assigning it, left the workplace to collect a parcel despite the existence of a Messenger, failed to report the missing Truck to Management promptly, and failed to utilise the available tracking device. These failures exposed the Respondent to material and reputational damage and amounted to gross negligence.

p. 3
02

Fairness of the termination procedure

Holding

The procedure followed by the Respondent was fair and in accordance with Sections 41 and 45 of the Employment Act.

Reasoning

The Respondent investigated, suspended the Claimant, issued a show-cause letter, presented specific charges, invited him to a disciplinary hearing in writing, heard him with a companion of his choice, gave reasons in the dismissal letter, and afforded him an appeal which he utilised. The Court described the process as a model fair termination process.

p. 3
03

Entitlement to overtime pay

Holding

The prayer for overtime pay is rejected because the Claimant's contract clause 4 provided a consolidated salary covering reasonable extra hours.

Reasoning

Clause 4 of the contract allowed the Respondent to call the Claimant to work reasonable hours outside standard hours, and the consolidated salary for his post included an allowance to cover such hours. There was therefore no basis for a separate overtime claim.

p. 3
04

Entitlement to anticipatory salary up to retirement

Holding

The prayer for salary to the age of retirement is refused; there is no factual or legal basis for such payment even where unfair termination is established.

Reasoning

The contract did not provide a retirement age, and the Claimant did not identify any contract, policy or law setting retirement at 60 years. Further, compensation is the proper remedy for unfair termination, not salary up to retirement.

p. 4
05

Pension prayer

Holding

The pension prayer is treated as withdrawn since the Claimant had already received his pension.

Reasoning

The Claimant testified he was paid his pension and did not wish to pursue the prayer for pension benefits. The Court accordingly treated the prayer as withdrawn.

p. 3

Legal principles established

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  • Where an employee is dismissed for gross negligence and the employer follows a fair disciplinary procedure, the dismissal is justified under Section 44para 4[c] of the Employment Act and no compensation or notice pay is payable.
  • Where a contract of employment provides a consolidated salary incorporating an allowance for reasonable extra hours, an employee cannot later claim unpaid overtime.
  • Anticipatory salary up to the age of retirement is not a remedy for unfair termination; the remedy lies in compensation.
  • A fair termination process involves investigation, a show-cause letter, suspension, specific charges, a disciplinary hearing in the presence of a companion of the employee's choice, a reasoned dismissal letter and an opportunity to appeal.

Court orders

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  1. 1.The Claim is dismissed.
  2. 2.No order on the costs.

Authorities

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Legislation

  • Employment ActSection 44[4][c]
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Sections 41, 43, 44 and 45)

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, "John Ogweno Awaa v Mackenzie Maritime [E.A] Limited [2020] KEELRC 1732 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1732/eng@2020-02-07

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