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ELRCPartially AllowedELRC Cause No. 1730 of 2017 (Nairobi)· [2023] KEELRC 303 (KLR)

Otieno v Unilever Kenya Limited (Cause 1730 of 2017) [2023] KEELRC 303 (KLR)

Employment and Labour Relations Court
2 February 2023
8,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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In an ELRC cause at Nairobi, the Claimant, a weighbridge operator employed by the Respondent from 2006/2009 and earning a gross monthly salary of Kshs. 185,761.86, was summarily dismissed on 5th April 2017 over allegations that he created fictitious weighbridge tickets for motor vehicle KCG 243 J, concealing diversion of Heavy Fuel Oil in a scheme said to have cost the Respondent about Kshs. 120 million. He sought declarations of wrongful, unfair and unlawful termination, violation of constitutional rights to fair hearing, fair administrative action and freedom from discrimination, damages, reinstatement or in the alternative 12 months' salary under section 49 of the Employment Act. Ocharo Kebira J framed two issues: whether the summary dismissal was fair, and entitlement to reliefs. On procedure, the Court found the two days to respond to the show cause letter and one day's notice of the disciplinary hearing inadequate; the Claimant was never interviewed in the audit or internal investigations, and the audit and investigation reports were never supplied to him - conduct the Court held was tantamount to suppression of material evidence. The absence of the Line Manager from the committee was, however, justified as he was a suspect. On substance, the reasons in the dismissal letter were unconnected to the charges, rendering the dismissal substantively unfair. Constitutional damages under Articles 27 and 47 were declined, and reinstatement was barred by section 12(3)(vii) of the ELRC Act given the lapse of over three years. Judgment was entered for the Claimant: a declaration of unfair dismissal, compensation of five months' gross salary under section 49(1)(c), interest at court rates, and costs.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

Dismissal was procedurally unfair - inadequate notice to respond to show cause and to prepare for hearing, failure to supply the audit and investigation reports, and the hearing process fell short of section 41 of the Employment Act, Articles 47 and 50 of the Constitution and natural justice

Reasoning

The Claimant had only two days to respond to the show cause letter and one day's notice of the disciplinary hearing. He was never interviewed in the audit or internal investigations yet those reports formed the basis of the charges, and were never supplied to him before or at the hearing. The Court held that furnishing documents is not managerial discretion, and that the absence of sufficient notice erodes the section 41 protection.

p. 13
02

Constitution of the disciplinary committee absent the Line Manager

Holding

The committee was properly constituted because the Line Manager was himself a suspect and would have been conflicted

Reasoning

The Claimant did not identify his Line Manager or challenge the Respondent's evidence that the manager was a suspect in the alleged fraud and would have been conflicted had he conducted the hearing. The Respondent therefore had a valid reason to constitute the committee as it did.

p. 13
03

Substantive fairness of the summary dismissal

Holding

Dismissal was substantively unfair because the reasons in the dismissal letter (gross recklessness/carelessness) were not connected to the charges, and material evidence was suppressed

Reasoning

Section 45 imposes a burden to prove the reasons were valid and fair. The findings in the summary dismissal letter did not flow from the charges deliberated at the hearing. Suppression of the audit and investigation reports from the employee, given their centrality, amounted to not acting in accordance with justice and equity under section 45(4)(b).

p. 15
04

Entitlement to reliefs

Holding

Declaration of unfair dismissal granted; 5 months' gross salary compensation awarded; constitutional damages and reinstatement refused

Reasoning

The material did not establish violations of Articles 27 and 47. Reinstatement was barred by section 12(3)(vii) of the ELRC Act given the lapse of over three years. Exercising discretion under section 49(1)(c), the Court considered the procedural and substantive deviation by the Respondent and the Claimant's length of service in awarding five months' gross salary.

p. 16

Legal principles established

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  • An employer must furnish the employee with documents (such as audit and investigation reports) to be relied on at a disciplinary hearing; providing them is not a matter of managerial discretion
  • Where the employer's manual is silent, reasonable time applies; two days to respond to a show cause letter founded on audit reports was unreasonable
  • A reason for dismissal not connected with the charges before the disciplinary committee is not a valid reason

Court orders

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  1. 1.A declaration that the dismissal of the Claimant from employment was unfair
  2. 2.Compensation pursuant to section 49(1)(c) of the Employment Act of Kshs. 928,809.30
  3. 3.Interest on the awarded sum at Court rates from the date of Judgment till full payment
  4. 4.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsections 41, 43, 45, 49(1)(c), 49(3), 49(4)
  • Constitution of Kenya, 2010Articles 27, 47, 48, 50, 159(2)(d)
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B

Cases cited (14)

  • Wilberforce Ojiambo Oundo v Regent Management Limited
    [2013] eKLR
  • National Bank of Kenya v Anthony Njue John
    [2019] eKLR
  • Kisumu County Public Service & another v Samuel Okuro & others
    [2018] eKLR
  • Joseph Nyakundi v K-Rep Bank Limited
    [2015]
  • Benjamin Mwendwa Nduati & 4 others v East Africa Portland Cement Company
    [2010] eKLR
  • John Gakuo & another v County Government of Nairobi & others
    [2018] eKLR
  • O'Laoire v Jackel International Limited
    [1990] ICR 996, 1003
  • CFC Stanbic Bank Limited v Danson Mwashako Mwakuwoma
    [2015] eKLR
  • David Githinji Kibuge v New Co-operative Creameries Limited [KCC]
    [2019] eKLR
  • Anthony Mkala Chitavi v Maladi Water & Sewerage Company Limited
    [2013] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Lilian Muchungi v Green Belt Movement
    Nairobi ELRC Cause No. 1418 of 2017
  • David Wanjau Muuhoro v Ol Pajeta Ranching Limited
    [2014] eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12

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, "Otieno v Unilever Kenya Limited (Cause 1730 of 2017) [2023] KEELRC 303 (KLR)", Case Analysis (2023). ELRC Cause No. 1730 of 2017 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/303/eng@2023-02-02

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