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ELRCPartially AllowedCause 1981 of 2014 (not stated in extract)· [2021] KEELRC 2166 (KLR)

Joan Koech & 3 others v Swissport Kenya Limited [2021] KEELRC 2166 (KLR)

Employment and Labour Relations Court
11 February 2021
5,038 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 upheld the summary dismissal of five airport security guards because the employer proved a valid reason and followed fair disciplinary procedure.

What this practically means

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Executive summary

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Five security agents employed by the respondent at Jomo Kenyatta International Airport were summarily dismissed on 27.5.2015 for negligent performance of duty following pilferage of British Airways passengers' property. They claimed constructive and unfair dismissal, seeking reinstatement, a declaration that the disciplinary process was unprocedural, damages for unfair termination, a certificate of service, outstanding allowances, unpaid May 2015 salary, and general damages. The respondent asserted that Kenya Airports Authority investigations implicated the claimants in pilferage, that British Airways demanded their exclusion, and that after a consent order directed a fresh disciplinary process, the claimants were served with show cause letters and heard with union representation but refused to respond to the charges because the matter was pending in court. The court framed three issues: validity of the reason for dismissal, procedural fairness, and entitlement to reliefs. It held that the KAA investigation report, the claimants' admissions of being on duty during the pilferage, and their failure to exonerate themselves established a valid reason under sections 43, 44(4)(c) and (g) and 45 of the Employment Act. On procedure, the claimants' refusal to defend themselves was unjustified since the court had permitted the fresh disciplinary process, so section 41 was satisfied. The court declined the declaration of unfairness, reinstatement and section 49 damages. The Certificate of Service prayer succeeded, but the claims for outstanding allowances, May 2015 salary and general damages failed for lack of particulars and contrary evidence of payment. Save for the certificate of service, the suit was dismissed with no costs. Judgment was delivered online under Covid-19 measures with the parties' consent.

Key legal issues

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01

Whether the reason for dismissal was valid and fair

Holding

Yes - the KAA investigation report implicating the claimants in pilferage of British Airways passengers' property, plus their admission of being on duty, established valid reason for summary dismissal under section 44(4)(c) and (g)

Reasoning

The court relied on the KAA investigation report dated 19.2.2015 implicating the claimants, the British Airways complaint and blacklisting, and the claimants' admissions that they were the security agents on duty when pilferage occurred. They failed to exonerate themselves despite show cause letters and a disciplinary hearing. The suspicion of involvement was held to be founded on reasonable and sufficient grounds, discharging the employer's burden under sections 43 and 45.

p. 5
02

Whether the dismissal followed a fair procedure

Holding

Yes - show cause letters, an oral hearing with union representation, and the claimants' deliberate refusal to respond satisfied section 41 of the Employment Act

Reasoning

The claimants were served with show cause letters, invited to a disciplinary hearing, and attended with a union official of their choice. They refused to respond to the charges on the ground that the matter was pending in court, but the respondent had the court's permission (via the consent order of 20.5.2015) to conduct disciplinary proceedings afresh. Their refusal to defend themselves was therefore unjustified, and the employer met its burden under sections 41 and 45.

p. 6
03

Entitlement to reliefs

Holding

Only the claim for Certificate of Service succeeded; reinstatement, damages, allowances, salaries and general damages were refused

Reasoning

Having found valid reason and fair procedure, the court declined the declaration of unfairness, reinstatement and section 49 damages. The certificate of service prayer was allowed since the respondent had produced the certificates and the claimants never collected them. Salary and allowance claims failed because they were not particularised in the pleadings and the payslips and computations showed payment up to 27.5.2015 including notice pay and accrued leave.

p. 6

Legal principles established

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  • Parties are bound by their pleadings and issues raised only in submissions cannot be determined
  • An employer who serves show cause letters, grants an oral hearing with representation and considers representations has complied with section 41 of the Employment Act even if the employee declines to respond
  • Summary dismissal is permitted where an employee carelessly performs duties or is suspected on reasonable and sufficient grounds of a criminal offence to the employer's detriment, under section 44(4)(c) and (g) of the Employment Act

Court orders

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  1. 1.Declaration that the disciplinary process was unprocedural and unfair declined
  2. 2.Reinstatement and damages for unfair and wrongful termination declined
  3. 3.Prayer for Certificate of Service allowed
  4. 4.Claims for outstanding allowances, unpaid salaries for May 2015 and general damages dismissed
  5. 5.Suit dismissed save for the claim for Certificate of Service
  6. 6.No order as to costs - suit dismissed with no costs

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44(4)(c) and (g)
  • Employment Actsection 49
  • Employment Actsection 51
  • ELRC Procedure RulesRule 28(3)
  • Constitution of Kenyanot specified (referenced in consent order)

Cases cited (12)

  • Western Excavating (ECC) Ltd v Sharp
    [1978] ICR 221
  • Joseph Aleper & another v Lodwar Water and Sanitation Company Limited
    [2015] eKLR
  • Emmanuel Mutisya Solomon v Agility Logistics
    Cause 1418 of 2011
  • Benuel Mariera v Awand Enetrprises Limited
    Cause No. 191 of 2013
  • David Gichana Omuya v Mombasa Maize Millers Limited
    [2014] eKLR
  • Nicholas Otinyu Muruka v Equity Bank Limited
    [2013] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Liz Ayany v Leisure Lodges Limited
    [2018]
  • James Ondima Kabesa v Trojan International Limited
    [2017] eKLR
  • Alois Makau Maluvu v Cititrust Kenya Limited & another
    [2018] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; suit originally Cause No. 1981 of 2014 (Employment and Labour Relations Court, Nairobi)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joan Koech & 3 others v Swissport Kenya Limited [2021] KEELRC 2166 (KLR)", Case Analysis (2021). Cause 1981 of 2014 (not stated in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2166/eng@2021-02-11

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