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ELRCPartially AllowedCause No 10 of 2017· [2023] KEELRC 309 (KLR)

Vuli v Chemigas Limited (Cause 10 of 2017) [2023] KEELRC 309 (KLR)

Employment and Labour Relations Court
8 February 2023
3,493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent as a Sales Executive from May 1995, was summarily dismissed on February 3, 2016 for reporting late to work after the lunch break. He sued for declarations of unlawful and unfair termination, terminal dues, and general and punitive damages. The Respondent admitted the dismissal, asserting habitual lateness and refusal to obey lawful commands, and denied liability for service pay given NSSF membership. The court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the reliefs sought. On substance, attendance records from the biometric system, uncontroverted by the Claimant, established habitual lateness and prior warnings; the court held the Respondent had a valid and fair reason, noting Section 44(4) of the Employment Act is permissive and inexhaustible. On procedure, the Respondent's witness conceded the Claimant was never subjected to an internal disciplinary process or issued a notice to show cause; applying Section 41, the court found the termination procedurally unfair. The judgment was therefore partially allowed: a declaration of unfair and unlawful dismissal was issued, with one month's salary in lieu of notice (Kshs 56,443/=), two months' compensation (Kshs 112,886/=), a certificate of service to issue within 30 days, costs, and interest from judgment. Service pay was declined on account of NSSF membership; leave, general damages and punitive damages were declined for want of particulars, basis and evidence. The Respondent did not file submissions despite the court's directions.

Key legal issues

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01

Whether the Respondent had a valid and fair reason to summarily dismiss the Claimant

Holding

Yes - habitual lateness contrary to lawful instructions constituted a valid and fair reason related to the employee's conduct.

Reasoning

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.

p. 6
02

Whether the termination followed a fair procedure under Section 41 of the Employment Act

Holding

No - the Claimant was not subjected to any internal disciplinary process or notice to show cause, so the termination was procedurally unfair.

Reasoning

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.

p. 7
03

Quantum and entitlement to reliefs

Holding

Notice pay, three days' salary, two months' compensation and a certificate of service awarded; service pay, leave, general and punitive damages declined.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.A declaration that the Claimant's dismissal from employment was unfair and unlawful.
  2. 2.One month's salary in lieu of notice Kshs 56,443/=.
  3. 3.Equivalent of two (2) month's compensation Kshs 112,886/=.
  4. 4.Certificate of service to issue within 30 days.
  5. 5.Costs of this suit to the Claimant.
  6. 6.Interest at court rates from the date of judgement till payment in full.

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 44(4)(e)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 35(6)(d)
  • Employment Act, 2007Section 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (6)

  • David Kipkosgei Mutai v Green Palms Academy
    (2014) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    (2017) eKLR
  • Kenafric Industries Ltd v John Gitonga Njeru
    (2016) eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    (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, "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.