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ELRCPartially AllowedCause No 159 of 2016· [2022] KEELRC 11 (KLR)

OMEGA v KIBOS SUGAR & ALLIED INDUSTRIES LTD (Cause 159 of 2016) [2022] KEELRC 11 (KLR)

Employment and Labour Relations Court
4 May 2022
RSRadido Stephen
1,299 words in judgment
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The bottom line

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A Kenyan court ruled an employer fired a worker over theft accusations it couldn't prove, awarding him three months' pay despite his walkout during the hearing.

What this practically means

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Executive summary

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Justus Dennis Omega (the Claimant) sued by a Memorandum of Claim dated 30 May 2016 seeking a declaration that his termination was illegal, unlawful and wrongful, payment of Kshs 455,000/- itemised in the claim, interest from October 2013, and costs. The Respondent filed a Response on 4 November 2016 and the cause was heard on 2 and 14 December 2021, with the Claimant and the Respondent's Human Resources Manager testifying. On procedural fairness, the court found the Respondent had given written notice of the allegations, obtained a written response, and convened an oral hearing at which the Claimant was accompanied by a union official and a witness, but the Claimant walked out; an employee has a common law duty to cooperate with a disciplinary hearing, and the Respondent was in substantial compliance. On substantive fairness, applying sections 43 and 45 of the Employment Act and the Bamburi Cement Ltd v William Kilonzi test, the court held the Respondent failed to prove on a balance of probability that the Claimant was involved in theft of scrap metal: the property was not described, the informant was not called and no police report was proved. The termination was declared not for valid or fair reasons. The court awarded compensation equivalent to 3 months' gross wages (Kshs 52,500/-), directed payment of dues outlined in the termination letter if unpaid, declined leave allowance, accrued leave and unpaid salary for the suspension period, and awarded the Claimant costs. Judgment delivered virtually from Kisumu on 4 May 2022 by Radido Stephen, Judge.

Key legal issues

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01

Procedural fairness in disciplinary process

Holding

The Respondent substantially complied with procedural fairness; the Claimant was given notice, allegations to confront, written response opportunity and an oral hearing, but walked out

Reasoning

The Claimant was suspended with written allegations and asked to respond in writing, which he did. He was later called to an oral hearing accompanied by a union official and his brother, but the hearing was aborted when he and his witness walked out. The court held an employee must cooperate with a disciplinary hearing and that the Claimant snubbed his last opportunity to be heard.

p. 2
02

Substantive fairness - proof of reason for termination

Holding

The Respondent failed to prove on a balance of probability that the Claimant was involved in theft of scrap metal; termination was not for valid or fair reasons

Reasoning

Under sections 43 and 45 of the Employment Act the employer must justify the reason for termination. The only witness did not identify the stolen property, the informant was not called and no explanation was given, and no police report was proved. There was no corroborating evidence from other workers. The Respondent therefore failed to discharge the burden of justifying the dismissal.

p. 3
03

Compensation for unfair termination

Holding

Equivalent of 3 months' gross wages awarded, considering 7 years of service and circumstances of termination

Reasoning

Having found the termination substantively unfair, the court considered the length of service (7 years) and the circumstances of termination in exercising its discretion on remedy under the Employment Act, fixing compensation at three months' gross wages, computed at Kshs 52,500/-.

p. 3

Legal principles established

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  • An employee is under a common law obligation to cooperate with the employer during a disciplinary hearing
  • The onus of proving or justifying the reasons for dismissal lies with the employer

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was not for valid or fair reasons
  2. 2.Award of compensation equivalent to 3 months' gross wages computed at Kshs 52,500/-
  3. 3.The Respondent to pay the dues outlined in the letter of termination if the same were not paid
  4. 4.The Claimant to have costs of the suit

Authorities

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Legislation

  • Employment Actsections 43 and 45
  • Employment Actsection 47(5)
  • Employment Actsection 28(4)

Cases cited (3)

  • Bamburi Cement Limited vs. William Kilonzi
    (2016) eKLR
  • Judicial Service Commission vs. Gladys Boss Shollei
    Civil Appeal No. 50 of 2014
  • McKinley vs. B.C.Tel.
    (2001) 2 S.C.R. 161
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims (Employment Act, 2007, sections 43, 45, 47(5), 28(4))

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, "OMEGA v KIBOS SUGAR & ALLIED INDUSTRIES LTD (Cause 159 of 2016) [2022] KEELRC 11 (KLR)", Case Analysis (2022). Cause No 159 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/11/eng@2022-05-04

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