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ELRCPartially AllowedCause No 74 of 2017· [2022] KEELRC 1318 (KLR)

Manuel v Perimeter Protection Limited (Cause 74 of 2017) [2022] KEELRC 1318 (KLR)

Employment and Labour Relations Court
25 July 2022
OKOcharo Kebira
3,655 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even when an employee deserves dismissal, Kenyan employers must still follow a fair process or pay compensation.

What this practically means

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Executive summary

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The Claimant, a guard employed by the Respondent, was summarily dismissed in April 2016 after a client complained that he had solicited money from her while assisting her to park. He sued for a declaration that the dismissal was unfair, terminal dues and compensatory damages totalling Kshs 622,425. The Respondent maintained that the dismissal was lawful under section 44 of the Employment Act as gross misconduct. The court framed three issues: fairness of the dismissal, entitlement to reliefs, and costs. On procedure, it found the show cause letter satisfied the notification component, but the Claimant was never heard and his representations never considered; the Respondent's claim of a hearing through witness statements emerged only in cross-examination and was dismissed as an afterthought. The dismissal was therefore procedurally unfair. On substance, however, the complaint, the Claimant's admitted interaction and apology, and his prior warnings meant any reasonable employer would believe a bribe was solicited, justifying summary dismissal. On reliefs, notice pay was refused, the off-days claim was refused on admission and limitation under section 90, the public holidays claim was refused as speculative and unparticularised, and compensation was limited to three months' gross salary (Kshs 49,794) under section 49(1)(c) given the Claimant's contribution and prior warnings. Judgment was entered for the Claimant with a declaration of procedural unfairness but substantive justification, the award, interest at court rates, and costs of the suit. Ocharo Kebira, J delivered the judgment on 25 July 2022.

Key legal issues

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01

Was the summary dismissal procedurally fair under section 41 of the Employment Act?

Holding

Procedurally unfair - although a show cause letter was issued and responded to, the Claimant was not heard and his representations were not considered before dismissal.

Reasoning

The show cause letter sufficiently notified the Claimant of the accusation, satisfying the first component. However, the Respondent only claimed a hearing through witness statements during cross-examination, a version absent from its pleadings and witness statement; the court treated it as an afterthought. Having found no hearing, the consideration component was also absent, rendering the dismissal procedurally unfair.

p. 6
02

Was the summary dismissal substantively justified?

Holding

Substantively justified - the Respondent genuinely and reasonably believed the Claimant solicited a bribe, warranting summary dismissal under section 44.

Reasoning

Despite the client's email not identifying the guard and the CCTV operator not testifying, the court found the combination of the complaint, the Claimant's admission of interacting with and assisting the client, his apology, and his prior similar warnings sufficient for any reasonable employer to believe a bribe was solicited. The misconduct was of a gravity sufficient to attract summary dismissal under section 44 of the Employment Act.

p. 7
03

What reliefs is the Claimant entitled to?

Holding

Only compensation of 3 months' gross salary under section 49(1)(c), with interest and costs; notice pay, off-days and public holidays claims declined.

Reasoning

Because the dismissal was substantively justified, notice pay was not payable. Off-days were admitted to have been enjoyed and in any event time-barred under section 90. The public holidays claim was unparticularised and speculative. Compensation was reduced to 3 months given that liability attached only procedurally, the Claimant contributed through his conduct, and he had prior warnings.

p. 7

Legal principles established

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  • Fairness in termination has procedural and substantive components; absence of either renders the dismissal unfair under section 45 of the Employment Act
  • Section 41 procedure is mandatory and deviation renders a dismissal unfair even where there is substantive justification
  • Procedural fairness under section 41 comprises notification, hearing and consideration components
  • A claim for monetary dues must be particularised with specificity and supported by evidence, otherwise it will be declined

Court orders

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  1. 1.A declaration that the dismissal of the Claimant from employment was procedurally unfair, but substantively justified
  2. 2.Compensation pursuant to section 49(1)(c) of the Employment Act of Kshs. 49,794
  3. 3.Interest at court rates on the compensation from the date of judgment till full payment
  4. 4.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 90
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Anthony Mkala Chivati vs Malindi Water & Sewerage Company Ltd
    (2013) eKLR
  • Kenya Union of Commercial Food and Allied Workers vs Meru North Farmers SACCO Limited
  • George Okello Munyolo vs Unilever Kenya Limited
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Manuel v Perimeter Protection Limited (Cause 74 of 2017) [2022] KEELRC 1318 (KLR)", Case Analysis (2022). Cause No 74 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1318/eng@2022-07-25

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