Godfrey Meso Komba v Inter Beuty Products Limited [2021] KEELRC 464 (KLR)
The bottom line
#A Kenyan court upheld a worker's dismissal, ruling his employer followed a fair process and had valid reasons for ending his job.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair under section 41 of the Employment Act
The process was fair: the Claimant was issued a show cause and suspension letter, responded in writing, was invited to and attended a disciplinary hearing with a shop steward, and his representations were considered
The court applied the three-part test of procedural fairness under section 41. The show cause letter clearly set out the accusations and allowed about 9 days to respond. The invitation to the disciplinary hearing detailed the Claimant's rights, including representation. The minutes showed the accusations, questions and the Claimant's answers, and the panel considered his representations. The unsigned minutes were not impugned on accuracy.
Whether the reasons for termination were valid and fair under sections 43, 44 and 45
Yes – the Claimant's flushing of 1.2 tons of industrial material down the drain and his unauthorised absence and failure to complete assigned work amounted to gross misconduct justifying summary dismissal
The court noted the Claimant admitted the incidents, offering only that the spillage was accidental, an explanation 'infected with casualness'. Considering the contract's terms, the quantity of material lost and prior warnings for carelessness, the conduct destroyed the trust requisite of the employment relationship, thus satisfying section 45(2).
Whether an employer may rely on contractual provisions rather than the Employment Act in terminating employment
The court rejected the argument that reliance on the contract was an attempt to 'out contract' the Act, observing that the provisions in question may be outsourced by agreement
The Claimant contended the Respondent was attempting to defeat sections 41, 43, 45, 47 and 49 by relying on the contract. The court found the Respondent did not rely solely on the contract, having followed the statutory disciplinary process, and observed the provisions are capable of being outsourced by contract.
Legal principles established
#- Section 41 of the Employment Act comprises three components of procedural fairness: notification of grounds, right to be accompanied and make representations, and consideration of those representations before decision
- Citing an act listed under section 44(4) is not enough; the employer must show the conduct amounted to a fundamental breach destroying the trust between employer and employee
- An employer may commute a summary dismissal to ordinary termination with notice, and that election benefits the employee and cannot be faulted
Court orders
#- 1.Claimant's suit dismissed
- 2.Claimant to avail himself for clearance within 14 days of the judgment
- 3.Upon clearance, the Respondent to pay the Claimant the amount or any amount he shall rightfully be entitled to (including the one month's salary in lieu of notice)
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007 (ss. 41, 43, 44, 45, 47, 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Meso Komba v Inter Beuty Products Limited [2021] KEELRC 464 (KLR)", Case Analysis (2021). Memorandum of claim dated 20th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/464/eng@2021-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.