Wambu v British Army Training Unit Kenya (BATUK) (Cause E060 of 2021) [2023] KEELRC 1945 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer unfairly dismissed a worker for using a truck with his supervisor's permission, awarding him over Kshs 1 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was grounded on valid and fair reasons
No valid and fair reason existed; the claimant had authorisation from Mr Pawson to ferry sand for personal use, never overloaded the vehicle, and the tyre damage was not caused by careless performance of work
The court found Mr Pawson was questioned at the disciplinary hearing and never denied authorising the claimant, and no statement from him denying authorisation was produced. The claimant's uncontroverted inspection report showed worn-out tyres predating the incident. The respondent adduced no evidence of the load weight against manufacturer limits, and the investigation report showed the claimant drove slowly. The misconduct charges duplicated section 44(4) offences, but the underlying facts did not establish misconduct.
Whether fair procedure under section 41 of the Employment Act was followed
Yes; a show cause letter, hearing notice, disciplinary hearing with a fellow employee of choice, consideration of representations and an appeal satisfied section 41
The claimant acknowledged receipt of the show cause letter dated June 6, 2019 and the hearing notice, attended the hearing accompanied by a colleague of his choice, and his representations were considered before dismissal. His appeal was considered and the outcome communicated in writing. The use of RLECs 2019 rather than 2018 caused no prejudice since the disciplinary procedures were identical and the statutory minimums under section 41 were met.
Entitlement to reliefs - notice, compensation, gratuity and house allowance
Claimant awarded one month's notice, six months' gross salary compensation and pleaded gratuity; house allowance claim dismissed as salary was consolidated
Clause 10 of the contract provided 30 days' notice, so one month's salary in lieu was awarded. Compensation was capped at six months despite the statutory maximum of twelve, considering six years of unblemished service and that the dismissal was attributable to the employer. Gratuity was assessed under RLECs 2018 paragraph 1400 and standing order 103 as one month's gross pay per completed year. House allowance was refused because RLECs 2018 made no provision for it and paragraph 422 of RLECs 2019 merely clarified the salary was consolidated.
Legal principles established
#- An employer bears the burden under section 45(2) of the Employment Act of proving that the reason for termination is valid, fair and that fair procedure was followed
- Where an employee is authorised by a supervisor to use an employer's vehicle for personal use, and there is no evidence of overloading or careless driving, the employer lacks a valid and fair reason for summary dismissal
- Being subjected to a disciplinary process under a later version of employer regulations occasions no prejudice where the disciplinary procedure is substantively the same and the conduct charged warrants summary dismissal under both versions and section 44(4) of the Employment Act
- Upon a declaration of unfair termination, the employee is entitled to salary in lieu of notice and compensation under sections 49 and 50 of the Employment Act, and to gratuity where the applicable regulations provide for it
Court orders
#- 1.Declaration that the dismissal was unjustified, unfair and unlawful within the meaning of section 45 of the Employment Act
- 2.Judgment for the claimant for Notice of Kshs 81,455.00
- 3.Compensation for unfair termination of Kshs 488,730.00 (six months' gross salary)
- 4.Gratuity of Kshs 455,517.92
- 5.Total award of Kshs 1,025,702.92 subject to statutory deductions
- 6.Costs of the suit to the claimant plus interest at court rate from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; ELRC Procedure Rules referenced)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambu v British Army Training Unit Kenya (BATUK) (Cause E060 of 2021) [2023] KEELRC 1945 (KLR)", Case Analysis (2023). Cause No E060 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1945/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.