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ELRCDismissedNot stated in the judgment· [2021] KEELRC 1602 (KLR)

Peter Maina Mungai v Black Petals Limited [2021] KEELRC 1602 (KLR)

Employment and Labour Relations Court
20 January 2021
949 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 dismissed an unfair termination claim because the employee skipped a properly convened disciplinary hearing, forfeiting his right to be heard.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent since 2007 at a monthly salary of Kshs. 14,800/-, sued for wrongful and unlawful dismissal on 14th January 2016, seeking outstanding wages, leave dues of Kshs. 74,760/-, notice/severance pay and 12 months' salary as compensation, plus costs. The Respondent's defence alleged that following an attempted theft at its premises on 15th January 2016, police investigations implicated the Claimant; that show cause letters were served through union shop stewards; and that the Claimant declined to attend a disciplinary meeting held on 17th March 2016, after which he was dismissed and squandered his right of appeal. The Respondent did not attend the hearing of the suit on 9th December 2020. The Claimant testified and submitted that his termination was unfair under Section 45(2) of the Employment Act and that the uncontroverted evidence entitled him to maximum compensation, citing three authorities. The court held that the Claimant was clearly afforded an opportunity to attend the disciplinary hearing through his shop stewards but declined, and that Section 41 of the Employment Act does not protect an employee who deliberately refuses to attend a procedurally called meeting. Finding that the Claimant failed to prove unlawful dismissal on a balance of probabilities, the court dismissed the suit with no order as to costs.

Key legal issues

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01

Whether the dismissal was unfair for want of a hearing under Section 41 of the Employment Act

Holding

The dismissal was not unfair; the Respondent issued show cause letters and invited the Claimant through shop stewards, but the Claimant declined to attend the hearing.

Reasoning

The defence documents showed the Claimant was invited to a disciplinary hearing scheduled for 17th March 2016 through shop stewards Peter Emoja and Godfrey Juma, who confirmed informing him. The minutes showed he was afforded an opportunity to attend but declined. The court held that Section 41 safeguards an employee who participates, not one who deliberately refuses to attend a procedurally called meeting. The Claimant therefore failed to prove unlawful dismissal on a balance of probabilities.

p. 2
02

Burden of proof on the Claimant in an unfair termination claim

Holding

The Claimant failed to discharge the burden of proving the alleged unlawful dismissal on a balance of probabilities and could not recover.

Reasoning

Although the Respondent did not attend the hearing and its evidence was not controverted in cross-examination, the documents annexed to the defence (show cause letters and disciplinary minutes) demonstrated that the Claimant was notified of the hearing and chose not to attend. Relying on the authority the Claimant himself cited, the court noted that uncontroverted evidence ordinarily discharges the burden, but here the Claimant's own conduct of declining the hearing defeated the claim of not being heard.

p. 2

Legal principles established

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  • An employer who issues a show cause letter and notifies an employee of a disciplinary hearing through his union representatives satisfies Section 41 of the Employment Act even where the employee is absent; the employee cannot later claim he was not heard.
  • An employee who deliberately refuses to attend a procedurally convened disciplinary meeting squanders his opportunity to be heard and cannot found a claim for unfair termination on that refusal.

Court orders

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  1. 1.The suit stands dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 41

Cases cited (3)

  • Benjamin Ochieng Angaga v George Ombego
    [2020] eKLR
  • Pamela Butalanyi v University Council for the Kenya Polytechnic University College
    [2015] eKLR
  • John Mwanzia Mbithuka v Mukesh Malde (Managing Director) & Another
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 45(2) and Section 41 pleaded)

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, "Peter Maina Mungai v Black Petals Limited [2021] KEELRC 1602 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1602/eng@2021-01-20

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