Vuli v Chemigas Limited (Cause 10 of 2017) [2023] KEELRC 309 (KLR)
The bottom line
#A Kenyan court ruled that even with a valid reason for firing an employee, employers must still follow fair disciplinary procedure or the dismissal is unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to summarily dismiss the Claimant
Yes - habitual lateness contrary to lawful instructions constituted a valid and fair reason related to the employee's conduct.
Attendance records from a biometric system, which the Claimant did not controvert, showed persistent lateness in 2015 and early 2016 and prior warning letters. Section 44(4) is not exhaustive, and Section 44(4)(e) covers knowingly failing to obey a lawful and proper command. The court found the employer proved a valid and fair reason on a balance of probabilities.
Whether the termination followed a fair procedure under Section 41 of the Employment Act
No - the Claimant was not subjected to any internal disciplinary process or notice to show cause, so the termination was procedurally unfair.
RWI confirmed on cross-examination that no internal disciplinary hearing was conducted and no notice to show cause issued. Applying the four elements in Postal Corporation of Kenya v Andrew K. Tanui, the Respondent produced no evidence of compliance with Section 41, rendering the termination unfair for want of procedural fairness despite the valid reason.
Quantum and entitlement to reliefs
Notice pay, three days' salary, two months' compensation and a certificate of service awarded; service pay, leave, general and punitive damages declined.
Notice pay was due since no notice was given; three days' unpaid salary was unrebutted as RWI had no evidence of payment; compensation was fixed at two months' salary considering 19 years of service, the Claimant's substantial contribution to the termination and prior warnings; service pay was excluded by NSSF membership under Section 35(6)(d); leave, general and punitive damages lacked particulars, basis or evidence.
Legal principles established
#- For a termination to be fair it must have both substantive justification and procedural fairness.
- The employer bears the burden of proving both a valid and fair reason and compliance with fair procedure under Sections 43, 45 and 41 of the Employment Act.
- The enumeration of gross misconduct under Section 44(4) of the Employment Act is permissive and not exhaustive.
- Failure to subject an employee to any internal disciplinary process renders a termination procedurally unfair even where a valid reason exists.
Court orders
#- 1.A declaration that the Claimant's dismissal from employment was unfair and unlawful.
- 2.One month's salary in lieu of notice Kshs 56,443/=.
- 3.Equivalent of two (2) month's compensation Kshs 112,886/=.
- 4.Certificate of service to issue within 30 days.
- 5.Costs of this suit to the Claimant.
- 6.Interest at court rates from the date of judgement till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vuli v Chemigas Limited (Cause 10 of 2017) [2023] KEELRC 309 (KLR)", Case Analysis (2023). Cause No 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/309/eng@2023-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.