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ELRCPartially AllowedCause Number 1472 of 2018 (Consolidated with Cause Number 1473 of 2018)· [2021] KEELRC 1013 (KLR)

Charles Muema Munuve & another v Safaricom PLC [2021] KEELRC 1013 (KLR)

Employment and Labour Relations Court
20 September 2021
JRJames Rika
6,737 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Safaricom unfairly dismissed two managers over devices they could not monitor, awarding millions in compensation.

What this practically means

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Executive summary

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Two Area Sales Managers of Safaricom Plc were summarily dismissed on 28th June 2018 over failure to account for Huawei Y311 devices distributed for digital subscriber registration, and for devices used on competitor networks. The claims, consolidated by consent, alleged lack of fair hearing and dismissal without justifiable cause, with prayers for reinstatement, back-salaries, notice pay, compensation, damages for discrimination and terminal dues. The Respondent maintained the Claimants were negligent and improper in performing their duties, justifying summary dismissal. The court identified three issues: justifiable reasons, procedural fairness, and remedies. On substance, the court held the dismissal unreasonable: the Claimants had been transferred or promoted away from the areas where the devices were distributed, no handover mechanism existed, and they lacked the tools and capacity to monitor device use — a capacity only the Respondent had. The Respondent did not act within a band of reasonable responses, so termination lacked valid reasons under Sections 43 and 45 of the Employment Act. Procedurally, however, the Claimants were heard at investigation, disciplinary hearing and appeal; letters to show cause were issued and responded to, and job advertisements during the appeals were within managerial discretion. Procedure was thus fair under Section 41. Reinstatement was refused because both Claimants had moved on and the Respondent had filled the vacancies; back-salaries fell with reinstatement, and no separate damages for discrimination were warranted. Compensation under Section 49 of the Employment Act and Section 12para 3[v] of the ELRC Act was granted — 8 months' gross salary for the 1st Claimant (Kshs. 2,648,000) and 7 months' for the 2nd (Kshs. 3,696,000) — plus one month's notice pay each, costs to the Claimants, and interest at court rates from judgment until payment in full.

Key legal issues

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01

Whether termination was based on valid and justifiable reasons under Sections 43 and 45 of the Employment Act

Holding

Termination was not based on valid reasons and was unfair on this score

Reasoning

The accusations concerned monitoring of devices after delivery to Agents and Dealers, a period after both Claimants had been transferred or promoted away from their initial areas of management. No handover mechanism existed under the Respondent's device management process, the Claimants lacked capacity or tools to monitor device usage (a capacity the Respondent itself possessed), and the investigator did not even hold the 2017 list of assigned devices. The Respondent therefore failed to act within a band of reasonable responses, and its decision was not reasonable.

p. 8
02

Whether termination was procedurally fair under Sections 41 and 45 of the Employment Act

Holding

Procedure was fair; the Claimants were heard at investigation, disciplinary hearing and appeal

Reasoning

The Claimants recorded statements with the Risk Management Department, received and responded to letters to show cause, were invited to and heard at disciplinary hearings, were informed of decisions and appeal rights, appealed and were heard on appeal. Although not availed the full Investigation Report, they had extracts, knew the charges, and suffered no significant prejudice. Advertising their roles during the appeal was within managerial discretion and did not taint the procedure.

p. 8
03

Whether the pleaded remedies were merited

Holding

Reinstatement, back-salaries and discrimination damages refused; compensation under Section 49 of the Employment Act and Section 12para 3[v] of the ELRC Act granted at 8 and 7 months' gross salary, plus notice pay

Reasoning

Both Claimants had moved on to other income-generating engagements and the Respondent had filled the vacancies, making reinstatement inappropriate three years after separation. Long service of 15 and 13 years, clean records, senior positions and exemplary awards justified substantial compensation, tempered by terminal benefits already paid and mitigation through alternative employment. The discrimination damages claim had no separate foundation.

p. 8

Legal principles established

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  • Reasonableness in an employer's termination decision entails fairness, transparency, consideration of all factors, justifiability, clear standards of communication and proportionality, and the employer must act within a band or range of reasonable responses
  • An employer may not demand that employees account for, or monitor, assets placed beyond their control following the employer's own transfer or promotion of those employees, where no monitoring tools were given to them

Court orders

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  1. 1.Declaration that termination was not based on valid reason or reasons, and was to that extent unfair
  2. 2.Respondent to pay the 1st Claimant equivalent of 8 months' gross salary in compensation for unfair termination at Kshs. 2,648,000 and notice at Kshs. 331,000 – total Kshs. 2,979,000
  3. 3.Respondent to pay the 2nd Claimant equivalent of 7 months' gross salary in compensation for unfair termination at Kshs. 3,696,000 and notice at Kshs. 528,000 – total Kshs. 4,224,000
  4. 4.Costs to the Claimants
  5. 5.Interest allowed at court rates from the date of Judgment till payment is made in full

Authorities

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Legislation

  • Employment Act 2007Section 43
  • Employment Act 2007Section 44
  • Employment Act 2007Section 44 [4] [c]
  • Employment Act 2007Section 45
  • Employment Act 2007Section 41
  • Employment Act 2007Section 49
  • Employment and Labour Relations Court ActSection 12 [3] [v]

Cases cited (7)

  • County Assembly of Kisumu & 2 others v. Kisumu County Service Board & 6 others
    C.A. No. 17 & 18 of 2015
  • George Kingi Bamba v. National Police Service Commission
    C.A. No. 149 OF 2017
  • George Mburugu Ikiara v. National Police Service Commission
    Petition No. 248 of 2019
  • Salome Lilian Etenyi v. Kenya Ports Authority
    Cause No. 402 of 2015
  • Kenya Revenue Authority v. Reuwel Waithaka Gitahi & 2 others
    [2019] e-KLR
  • Naima Khamis v. Oxford University Press [E.A.] Limited
    [2017] e-KLR
  • Kenya Airways Limited v. Aviation & Allied Kenya Workers Union Kenya & 3 others
    [2014] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (establishing the ELRC's jurisdiction over employment disputes, cited at Section 12 [3] [v])

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Muema Munuve & another v Safaricom PLC [2021] KEELRC 1013 (KLR)", Case Analysis (2021). Cause Number 1472 of 2018 (Consolidated with Cause Number 1473 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1013/eng@2021-09-20

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