Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2021] KEELRC 218 (KLR)

Kenya Plantation and Agricultural Workers Union v Eastern Produce Kenya Limited [2021] KEELRC 218 (KLR)

Employment and Labour Relations Court
9 December 2021
3,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court upheld a summary dismissal because the employer proved gross misconduct and followed a fair disciplinary procedure to the letter.

What this practically means

#

Executive summary

#
The claimant union sued on behalf of its member, a grievant employed by the respondent from 1998 until 29/12/2016 when he was summarily dismissed for gross misconduct. The dismissal followed allegations that he accessed the payroll computer, changed his password and made deletions in the payroll without authorisation. The reliefs sought were a declaration of unfair and unlawful dismissal, maximum compensation, special damages of Kshs 736,998.60, gratuity, interest and costs. The respondent defended the suit, contending that the reason for dismissal was valid and that a fair procedure, including an appeal, was followed in accordance with the law and the CBA. The grievant and two respondent witnesses testified. The court framed three issues: validity of the reason, fairness of the procedure, and whether the reliefs were merited. On the reason, although the auditor admitted the audit trail could not identify who made the deletions and that access to the payroll room was unrestricted, the grievant admitted accessing the system on 2/11/2016 without authority and changing his password, and admitted he never shared his password, which was used to make four deletions on 6/11/2016. The court found the offences proved and constituted gross misconduct under section 44 of the Employment Act. On procedure, the grievant was suspended with stated offences, investigated, invited to a hearing with a representative, allowed to respond, and had his appeal heard; the court found a fair procedure under section 41 was followed. All reliefs were declined, including gratuity, which clause 36(c) of the CBA barred for employees dismissed for gross misconduct. The suit was dismissed with no order as to costs.

Key legal issues

#
01

Validity of the reason for dismissal

Holding

The employer proved the reason: the grievant accessed the payroll computer without authority, changed his password, and his unshared password was used to make unauthorised deletions

Reasoning

Although the auditor admitted the audit trail could not identify who made the deletions and access to the payroll room was unrestricted, the grievant admitted in his investigation statement that he accessed the system on 2/11/2016 without authority and changed his password. He also admitted he never shared his password, which was used to make four deletions on 6/11/2016. The offences amounted to gross misconduct under section 44 of the Employment Act.

p. 4
02

Fairness of procedure

Holding

A fair procedure under section 41 was followed: suspension stating the offences, investigation, hearing notice, attendance with a representative, opportunity to respond, and a right of appeal

Reasoning

The grievant was suspended by a letter citing the alleged offences, recorded a statement, was invited to a disciplinary hearing citing the same misconduct, attended with a representative, and both were given opportunity to answer questions. Any new issues raised at the hearing did not form part of the reasons for termination, as the suspension, hearing notice and dismissal letter cited the same reasons.

p. 4
03

Reliefs

Holding

All reliefs declined because the dismissal was justified and lawful

Reasoning

Having found valid reason and fair procedure, the court declined the declaration of unfair dismissal, compensation under section 49(1), salary in lieu of notice, and gratuity. Gratuity was additionally barred by clause 36(c) of the CBA for employees dismissed for gross misconduct.

p. 4

Legal principles established

#
  • An employer who proves a valid reason for summary dismissal and follows a fair procedure under section 41 of the Employment Act is not liable for unfair termination
  • An employee who admits unauthorised access to a system and whose unshared password is used to make deletions is responsible for the deletions

Court orders

#
  1. 1.Suit dismissed with no order as to costs

Authorities

#

Legislation

  • Employment Actsection 45
  • Employment Actsection 41
  • Employment Actsection 44
  • Employment Actsection 49(1)
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (6)

  • Walter Ogal Anuro v Teacher Service Commission
    [2013] eKLR
  • Samson ole Kisirkor v Maasai Mara University & 3 others
    [2018] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture & Technology
    [2014] eKLR
  • Nicholas Muasya Kyula v Farmchem Ltd
    [2012] eKLR
  • Nazareno Kariuki v Feed the Children Kenya
    [2013] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 44, 45 and 49) and the ELRC Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Plantation and Agricultural Workers Union v Eastern Produce Kenya Limited [2021] KEELRC 218 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/218/eng@2021-12-09

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