Onyapidi v Market Masters Limited (Cause 489 of 2016) [2023] KEELRC 181 (KLR)
The bottom line
#A Kenyan employer with a valid reason to dismiss a security officer still lost because it skipped the required face-to-face disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for dismissal
There was fair and valid reason to justify termination - the Claimant's unilateral facilitation of a tenant's re-entry against the Respondent's security concerns
The Claimant was not a party to the tenancy dispute and was not directed by any court to enforce any order. Faced with two conflicting court orders, he failed to consult the Directors, the Chief Security Officer or the Legal Department. Given the Westgate terrorist attack and the mall's security concerns, his conduct amounted to negligence and gross misconduct under Section 44para 4 of the Employment Act.
Fairness of the procedure followed
Procedure was flawed; the Claimant was suspended, told to report on a date, and dismissed without a recorded disciplinary hearing or specific charges
The suspension letter did not state that the report date would be a disciplinary hearing, nor specify the charges. There was no record of a disciplinary hearing, of charges being read, or of a Section 41 explanation of procedural rights. Oral physical hearing with the right to accompaniment is required; correspondence and a mere board meeting do not comply.
Remedies
Compensation of 6½ months' salary awarded for procedural unfairness; notice pay refused
The Claimant served about 15 years and 5 months with an unblemished record, but contributed substantially to his departure, justifying a reduction from the 12 months sought. Notice pay was refused because summary dismissal for gross misconduct was substantively justified, and the Respondent confirmed it claimed nothing from him and no terminal benefits were paid.
Legal principles established
#- Reasons for termination are the matters the employer genuinely believed to exist at the time of termination
- Section 41 of the Employment Act requires an oral disciplinary hearing where the employee may be accompanied by a colleague or trade union representative; hearings by correspondence do not suffice
Court orders
#- 1.It is declared that termination was fair in substance, but flawed on procedure, and therefore unfair
- 2.The Respondent shall pay to the Claimant equivalent of 6½ months’ salary in compensation for unfair termination at Kshs 766,343
- 3.No order on the costs
- 4.Interest allowed at court rate from the date of Judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 44 and 45) over a claim for unfair termination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyapidi v Market Masters Limited (Cause 489 of 2016) [2023] KEELRC 181 (KLR)", Case Analysis (2023). Cause No 489 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/181/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.