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ELRCDismissedCause No 955 of 2016· [2023] KEELRC 644 (KLR)

Kenya National Private Security Workers Union v Wells Fargo Limited (Cause 955 of 2016) [2023] KEELRC 644 (KLR)

Employment and Labour Relations Court
14 March 2023
JGJacob Gakeri
4,616 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a summary dismissal, ruling that rude and insulting conduct toward management is a valid reason to fire an employee without notice.

What this practically means

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Executive summary

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The Claimant union, acting for a grievant employed by the Respondent from 27th January, 1989 who rose to Crew Commander on a salary of Ksh 31,354, challenged his summary dismissal on 30th April, 2015 following an incident of 14th March, 2015 in which his CIT vehicle was found parked on the road outside Fargo House without a Chase Car. The Claimant sought a declaration of unfair dismissal, one month's notice pay, service gratuity of Ksh 322,000, 12 months' compensation, costs and interest, contending the disciplinary panel was biased, representation inadequate and no warning was issued. The Respondent maintained the grievant was insubordinate and rude, daring management to dismiss him, and that it followed due process including a notice to show cause, disciplinary hearing with union representation, internal review and appeal. The court framed two issues: whether the termination was unfair and whether the reliefs were due. It found the allegation of failure to obey instructions unsubstantiated, but held the grievant's rude, insulting and defiant conduct toward management constituted a valid and fair reason for summary dismissal under Section 44(4)(d) of the Employment Act. It further found the Respondent complied with Section 41, the grievant having been heard, accompanied by a union representative and afforded an appeal. The suit was dismissed with each party bearing their own costs, delivered virtually at Nairobi on 14th March, 2023.

Key legal issues

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01

Whether the summary dismissal was substantively justified

Holding

The dismissal was justified: the grievant's rude, insulting and defiant conduct towards management fell within Section 44(4)(d) of the Employment Act.

Reasoning

Although the charge of failing to obey instructions was not substantiated, the grievant's reaction when questioned - daring management to dismiss him and boasting it was not his first offence - was rude and insulting. The court found his behaviour uncalled for, insulting and reprehensible, justifying summary dismissal. The failure to state reasons in detail in the dismissal letter did not invalidate the termination since the grievant knew the charges and responded to them.

p. 8
02

Whether the procedure under Section 41 of the Employment Act was followed

Holding

The Respondent complied with Section 41: notice to show cause, hearing with union representation, internal review and appeal were all afforded.

Reasoning

The grievant received a notice to show cause, responded in writing, attended a disciplinary hearing accompanied by a union dispute officer, signed the minutes, and had an appeal heard with a witness. His bare claim of inadequate representation was unsupported. The court found no evidence on which to fault the disciplinary process at any stage.

p. 10
03

Whether the failure to obey instructions was substantiated

Holding

The court found the allegation of failure to obey instructions was not substantiated, as the delay in returning was unquantified.

Reasoning

While it was not in contest that the grievant was directed to return to the yard and did not do so immediately, the evidence did not establish how long the delay lasted. However, this finding did not save the claim because the separate ground of rude and insulting conduct independently justified dismissal.

p. 7

Legal principles established

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  • For a termination to pass the fairness test, it must be both substantively justified and procedurally fair.
  • An employer may justifiably dismiss an employee who uses abusive or insulting language towards the employer or a person in authority over him.
  • Four elements must be discernible for a disciplinary procedure to pass muster under Section 41 of the Employment Act.

Court orders

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  1. 1.The Claimant's suit is dismissed.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 43(2)
  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 44(4)(d)
  • Employment ActSection 44(4)(e)
  • Employment ActSection 47(5)
  • Employment ActSection 49(1)
  • Regulation of Wages Order1998
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (8)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Swaleh David v Premier Cookies Ltd
    (2021) eKLR
  • Daniel Njuguna Muchiri v Sugar Bakery Ltd
    (2019) eKLR
  • Dede Esi Annie Amanor Wilks v Action Aid International
    (2014) eKLR
  • Boniface Simiyu Makoe v Kongoni River Farm (Star Division)
    (2020) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
  • Naima Khamis v Oxford University Press (E.A) Ltd
    (2017) eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (unfair termination and summary dismissal claim)

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, "Kenya National Private Security Workers Union v Wells Fargo Limited (Cause 955 of 2016) [2023] KEELRC 644 (KLR)", Case Analysis (2023). Cause No 955 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/644/eng@2023-03-14

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