Bett v East Africa Portland Cement Company (Cause 1562 of 2014) [2023] KEELRC 1358 (KLR)
The bottom line
#A Kenyan court upheld a stores clerk's dismissal for unaccounted cement stock, ruling he lost his chance to defend himself by walking out of the disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid and fair reason for termination
Yes - failure to account for 954 bags of cement and a float of Kshs 40,000 in a position of utmost trust was a valid and fair reason.
Under Sections 43(1) and 45(2) of the Employment Act the employer bears the burden of proving valid and fair reasons. The claimant did not controvert the audit findings showing discrepancies between physical stock and bin card balances, nor rebut the evidence that a theft of that scale was impracticable. He undertook transactions on the very day he alleged a theft, undermining his burglary account. Applying the reasonable employer test in British Leyland v Swift, the dismissal was justified.
Whether the claimant was accorded procedural fairness under Section 41 of the Employment Act
Yes - he was notified of the allegations, responded in writing, was invited to the hearing with union representatives, but walked out of his own will.
Section 41 requires notification of allegations and an opportunity to be heard with a fellow employee or union representative. The claimant was interdicted, responded to the show-cause letter, and attended the hearing with union officials. By his own admission his union chairman directed him to walk out, so he squandered the opportunity to be heard. The CBA did not substantiate his complaint about panel composition, and his criminal acquittal did not bar the disciplinary process.
Entitlement to reliefs sought
None - the dismissal being lawful and fair, reinstatement, damages, arrears and apology were not available.
Having found both substantive and procedural fairness established, the court held that the claims for salary arrears and compensatory damages fell away, and dismissed the entire claim. Costs were left to each party, indicating the court exercised its discretion on costs liberally despite dismissing the claim.
Legal principles established
#- The burden rests on the employer to prove that the reasons for termination are valid and fair.
- The reasonableness of a dismissal is judged by the band of reasonableness within which a reasonable employer might act.
- An employee who walks out of a disciplinary hearing squanders the employer's internal grievance mechanisms and cannot later claim he was not heard.
- Disciplinary proceedings cannot be equated to criminal proceedings; the degree of proof and objectives differ.
- An acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer.
Court orders
#- 1.Dismissal of the claim in its entirety
- 2.Each party to bear its own costs
- Jurisdiction invoked
- First-instance jurisdiction of the Employment and Labour Relations Court over the Memorandum of Claim dated 29th August, 2014 under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bett v East Africa Portland Cement Company (Cause 1562 of 2014) [2023] KEELRC 1358 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1358/eng@2023-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.