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ELRCDismissedStatement of Claim dated 13th June, 2017 (ELRC)· [2023] KEELRC 2020 (KLR)

Muleyi v Kenya Airports Authority (Cause 1086 of 2017) [2023] KEELRC 2020 (KLR)

Employment and Labour Relations Court
31 July 2023
SRSTELLA RUTTO
3,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld KAA's summary dismissal of an accounts clerk who kept client money, ruling the dismissal both substantively and procedurally fair.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as an Accounts Clerk from 1st December 2011, was summarily dismissed on 7th September 2015 on grounds of gross misconduct following complaints that he received client payments without issuing receipts, including Kshs 27,000 from Amir Roses which he retained in part for close to two weeks. He sought a declaration that his termination was unlawful and unfair, Kshs 851,409.00 comprising one month's salary in lieu of notice and compensatory damages, and a Certificate of Service. The Respondent maintained there were valid reasons for the dismissal, grounded in the Claimant's admitted breach of its Finance SOP and a prior 2014 warning, and that due process was followed. The court framed three issues: substantive justification, procedural fairness, and entitlement to reliefs. On substance, the court found the Claimant's written admission of retaining client money fatally dented the trust essential to his revenue-handling role, and applying the McKinley dishonesty test and the British Leyland band of reasonableness test, held a reasonable employer would have dismissed him. On procedure, the court found the Claimant was notified of the allegations, given a written explanation opportunity, and heard twice by disciplinary panels; the absence of union representation did not vitiate the process under Section 41 of the Employment Act. His complaint of victimization by a supervisor was dismissed as an afterthought. The Claim was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Substantive justification for termination

Holding

The Respondent proved valid, fair reasons related to the Claimant's conduct warranting summary dismissal for gross misconduct

Reasoning

The Claimant admitted receiving Kshs 27,000 from a client on 2nd April 2015, banking only Kshs 18,000 and retaining Kshs 9,000 for close to two weeks without receipting, admitting violation of the Finance SOP. Given his role handling revenue, this eroded trust. The court applied the McKinley dishonesty test and the British Leyland band of reasonableness test, holding a reasonable employer would have dismissed him.

p. 6
02

Procedural fairness under Section 41 of the Employment Act

Holding

The disciplinary process complied with Section 41; lack of union representation did not vitiate the process

Reasoning

The Claimant was asked to give a written explanation, responded in writing, and appeared before disciplinary panels on 30th April 2015 and 29th July 2015 where he was heard in person. Section 41 requires notification of allegations, an opportunity to make representations in the presence of a fellow employee or union representative of choice. The court held the process was fair notwithstanding the absence of a union representative, and the complaint against a supervisor was an afterthought raised only after dismissal.

p. 7

Legal principles established

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  • An employer must prove valid and fair reasons for termination; reasons must be matters the employer genuinely believed to exist at the time of termination
  • Whether dismissal for dishonesty is justified depends on whether the dishonesty gave rise to a breakdown in the employment relationship (McKinley test applied)
  • The reasonableness of dismissal is assessed on the band of reasonableness test
  • Absence of a union representative at a disciplinary hearing does not of itself render the process unfair where the employee was notified of allegations and given opportunity to respond

Court orders

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  1. 1.Dismissal of the Claim in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment ActSection 44(1)(3)
  • Employment ActSection 45(2)(a)
  • Employment ActSection 45(2)(b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 43(1)
  • Employment ActSection 43(2)
  • Employment ActSection 41(1)
  • Employment ActSection 41
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Cooperative Bank of Kenya Limited vs Banking Insurance & Finance Union (K)
    (2017) eKLR
  • McKinley vs BC Tel.
    (2001) 2 S.C.R. 161
  • British Leyland UK Ltd. vs Swift
    [1981] IRLR 91
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; Employment Act

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, "Muleyi v Kenya Airports Authority (Cause 1086 of 2017) [2023] KEELRC 2020 (KLR)", Case Analysis (2023). Statement of Claim dated 13th June, 2017 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2020/eng@2023-07-31

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