Kenya Plantation and Agricultural Workers Union v Eastern Produce Kenya Limited [2021] KEELRC 218 (KLR)
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
#Key legal issues
#Validity of the reason for dismissal
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
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.
Fairness of procedure
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
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.
Reliefs
All reliefs declined because the dismissal was justified and lawful
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.
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.Suit dismissed with no order as to costs
- 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.