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ELRCPartially AllowedCause No. 20 of 2019· [2022] KEELRC 180 (KLR)

Michael Thuo v Safaricom PLC [2022] KEELRC 180 (KLR)

Employment and Labour Relations Court of Kenya
21 April 2022
HWHellen Wasilwa
4,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled Safaricom unfairly dismissed a manager over inconsistent device-loss claims and missing disciplinary records, awarding him six months' salary.

What this practically means

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Executive summary

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The Claimant, formerly the Respondent's Area Sales Manager at Eldoret East, sued for wrongful and unfair termination following his summary dismissal on 28 June 2018. He alleged that he was disciplined over devices distributed to agents, with the number he allegedly failed to account for fluctuating from 47 to 410, to 380, to 11, and finally to 200 at dismissal, and that he was not given notice or pay in lieu of notice. He sought a declaration that the dismissal was null and void, reinstatement, or alternatively 12 months' salary as compensation, notice pay, remittance of statutory deductions, exemplary damages, costs and interest. The Respondent maintained that the Claimant failed in his duty to account for devices entrusted to him, causing a loss of about Kshs 1.2 million, and that the disciplinary process was fair. The court framed three issues: valid reasons, due process, and remedies. It found the allegations fluctuated and that neither party exhibited the disciplinary proceedings, creating doubt as to whether the reasons were validly established; it also held it could not establish that a fair disciplinary process occurred. The dismissal was therefore unfair and unjustified under section 45(2) of the Employment Act. The court awarded compensation equivalent to 6 months' gross salary (Kshs 1,912,705.32) less statutory deductions, with costs and interest at court rates from the date of judgment. Judgment was delivered virtually on 21 April 2022 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Whether the Respondent had valid reasons to dismiss the Claimant

Holding

The Respondent did not justly establish valid reasons; the fluctuating number of unaccounted devices (47, 380, 200) and the absence of disciplinary proceedings before the court created doubt

Reasoning

The allegations against the Claimant kept shifting - first 47 devices, then 380 at the disciplinary hearing, then 200 at dismissal. No disciplinary proceedings were exhibited by either party, so the court could not establish what the Claimant was alleged to have failed to account for or what he explained at the hearing. Without those proceedings, doubt existed whether the reasons for dismissal were validly established.

p. 5
02

Whether the Respondent followed due process before dismissal

Holding

The court could not establish that the Claimant was subjected to a fair disciplinary process

Reasoning

Although the Claimant was invited to a disciplinary hearing on 30 May 2018, no proceedings of that hearing were presented to court. Section 41 of the Employment Act requires notification and hearing before termination on grounds of misconduct. The court held that disciplinary hearings must be conducted transparently and proceedings presented to court to enable it establish the fairness of the process, which the Respondent failed to do.

p. 6
03

Whether the Claimant is entitled to remedies

Holding

The dismissal being unfair and unjustified under section 45(2), the Claimant was awarded the equivalent of 6 months' gross salary as compensation

Reasoning

Having found no valid reason and no due process, the court found the dismissal unfair under section 45(2) of the Employment Act. Rather than the 12 months' compensation sought or reinstatement, the court awarded 6 months' pay (6 x 318,784.22 = 1,912,705.32) less statutory deductions, plus costs and interest at court rates from the date of judgment.

p. 6

Legal principles established

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  • An employer must produce disciplinary proceedings before the court for the fairness of the process to be established
  • Failure by the employer to prove valid reason and fair procedure renders a termination unfair under section 45(2) of the Employment Act

Court orders

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  1. 1.The Respondent to pay the Claimant compensation equivalent to 6 months' gross salary, i.e. 6 x 318,784.22 = Kshs 1,912,705.32, less statutory deductions
  2. 2.The Respondent to pay costs of the suit plus interest at court rates with effect from the date of the Judgment

Authorities

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Legislation

  • Employment Actsection 35(1)(c)
  • Employment Actsection 36
  • Employment Actsection 41(1) and (2)
  • Employment Actsection 45(1) and (2)

Cases cited (6)

  • Jonah Mwaura Ngugi v Safaricom Plc
    [2019] eKLR
  • Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another
    2003 (2) SA 473 (SCA)
  • Charles Muema Munuve & another v Safaricom PLC
    [2021] eKLR
  • Simon Muguku Gichigi v Taifa Sacco Society Limited
    [2012] eKLR
  • Bamburi Cement Limited v William Kilonzi
    [2016] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 over unfair termination claims

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, "Michael Thuo v Safaricom PLC [2022] KEELRC 180 (KLR)", Case Analysis (2022). Cause No. 20 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/180/eng@2022-04-21

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