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ELRCDismissedNot stated in the judgment· [2023] KEELRC 2176 (KLR)

Kenya County Government Workers Union v Mavoko Water and Sewerage Company (Cause E005 of 2022) [2023] KEELRC 2176 (KLR)

Employment and Labour Relations Court
21 September 2023
MOMaureen Onyango
2,793 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a water company's dismissal of an employee for assaulting her supervisor because the employer followed fair disciplinary procedure and proved its reasons.

What this practically means

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Executive summary

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The Kenya County Government Workers Union sued Mavoko Water & Sewerage Company Ltd on behalf of its member, Cynthia Kavengi Simon (the Grievant), challenging the termination of her employment by letter dated 16th July 2020 on grounds of assaulting her supervisor (RW1) outside the workplace. The union sought a declaration of unfair termination, compensation, terminal dues and reinstatement. A conciliator had recommended reinstatement, but the Respondent rejected that report. The Grievant testified that RW1 was her alleged sexual harasser and that on 14th April 2020, while both were on leave, he confronted and assaulted her outside her Kitengela residence; she reported to police. RW1 denied this, said the Grievant attacked him, and recorded her on his phone. The Respondent maintained the termination followed the CBA and HR policy. The court framed two issues: whether the termination was unfair and whether the Grievant was entitled to remedies. Applying section 45(2) of the Employment Act, it held the Respondent complied with sections 41 and 45: the show cause letter and termination letter stated the grounds, and the joint disciplinary committee unanimously found the Grievant assaulted RW1. The absence of the chairman's signature on the minutes did not invalidate them. The court found the termination fair both substantively and procedurally, dismissed the entire claim, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the termination was substantively fair - whether there was a valid and fair reason (assault of supervisor)

Holding

The court found valid grounds for termination proved at both the disciplinary hearing and in court

Reasoning

The show cause letter and termination letter stated the grounds relied upon. The disciplinary committee, composed of both union and management representatives, unanimously found the Grievant assaulted RW1, and a video clip was shown to the committee. RW1 testified he was assaulted and his phone damaged. The court found these grounds valid and proved.

p. 7
02

Whether the termination was procedurally fair under sections 41 and 45 of the Employment Act

Holding

The Respondent complied with sections 41 and 45 of the Employment Act in the disciplinary process

Reasoning

The Grievant was issued a show cause letter, responded to it, was summoned to and attended a disciplinary hearing accompanied by a union witness, and the committee's minutes recorded findings. The court rejected the objection that the minutes were invalid for want of the chairman's signature, noting the claimant never objected to their production and all committee members signed them.

p. 7

Legal principles established

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  • An employer complies with sections 41 and 45 of the Employment Act where the show cause letter states the grounds for disciplinary action, the termination letter states the grounds for termination, and a disciplinary committee including union representation hears the employee
  • Minutes of a disciplinary hearing signed by all committee members but not by the chairman are not thereby invalidated

Court orders

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  1. 1.Dismissal of the entire claim for want of proof
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsections 41 and 45
  • Labour Relations ActNot specified

Cases cited (1)

  • National Bank of Kenya V Anthony Njue John
    [2019] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (as the ELRC) over an unfair termination claim; not expressly cited in the judgment

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 County Government Workers Union v Mavoko Water and Sewerage Company (Cause E005 of 2022) [2023] KEELRC 2176 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2176/eng@2023-09-21

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