Bhundia v Chandarana Supermarket Ltd & another (Cause E279 of 2021) [2023] KEELRC 726 (KLR)
The bottom line
#A Kenyan court ruled an employee unfairly fired over missing money because the employer had no investigation, no hearing, and no proof.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction/cause of action despite Section 45(3) of the Employment Act
Section 45(3) was declared unconstitutional in Samuel G. Momanyi and is inapplicable; the Claimant with 9 months' service had the right to claim and the court had jurisdiction.
The Respondent argued the Claimant, having served only 9 months, could not complain under Section 45(3). The court noted Lenaola J in Samuel G. Momanyi declared the provision unconstitutional as inconsistent with Articles 28, 41(1), 47, 48 and 50(1). The court found itself persuaded by that decision, holding the provision inapplicable, so the suit was properly before it.
Constructive dismissal
Claim failed; no evidence of repudiatory breach or that the Claimant left employment on account of the Respondent's conduct.
Adopting the contractual test in Western Excavating v Sharp as adopted by the Court of Appeal in Coca Cola v Ligaga, the court held constructive dismissal requires conduct amounting to repudiatory breach making continued stay untenable. The Claimant neither proved such breach nor that he quit blaming the employer; indeed he was terminated by the Respondent, rendering the doctrine inapplicable.
Valid and fair reason for termination
Respondent failed to prove a valid and fair reason for terminating the Claimant's employment.
Under Sections 43(1) and 45(2), the employer must prove the reason for termination. The court found no serious investigation, no show cause letter, no investigation report, no termination letter, conflicting figures for the missing cash, failure to report to police, and no evidence implicating the Claimant, especially as other managers had safe access after handover.
Procedural fairness under Section 41
Termination was procedurally flawed as the Claimant was neither invited to nor participated in a disciplinary hearing.
Section 41 is mandatory. RWI admitted there was no disciplinary committee and no minutes or invitation evidence. The Claimant was not notified of charges nor given an opportunity to be heard; the Board's decision was communicated orally. In the absence of evidence of compliance with Section 41, the termination was procedurally unfair.
Legal principles established
#- Section 45(3) of the Employment Act, having been declared unconstitutional, cannot be used to bar employees with less than 13 months' service from complaining of unfair termination
- Termination must be both substantively justified and procedurally fair
- The contractual test applies to constructive dismissal requiring a repudiatory breach going to the root of the contract
- The employer bears the burden of proving valid and fair reasons for termination on a balance of probabilities
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.One month's salary in lieu of notice
- 3.15 days worked in April 2020
- 4.Accrued leave days
- 5.Certificate of service
- 6.Equivalent of 2 months' salary as compensation under Section 49(1)(c)
- 7.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; challenge under Section 45(3) rejected following Samuel G. Momanyi v Attorney General
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bhundia v Chandarana Supermarket Ltd & another (Cause E279 of 2021) [2023] KEELRC 726 (KLR)", Case Analysis (2023). Nairobi ELRC Cause No. E279 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/726/eng@2023-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.