Kamanga v Bata Shoe Company (K) Limited (Cause 1183 of 2018) [2023] KEELRC 2339 (KLR)
The bottom line
#Kenya's Employment Court faulted Bata's dismissal process and rejected its Kshs. 55 million stock-loss claim, awarding a sacked manager only notice pay.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the summary dismissal procedure under Section 41(2)
The dismissal procedure was flawed - a key witness testified in the claimant's absence and the security and finance investigations flagged by the audit were never done before dismissal
The audit report itself said the modus operandi of the shortage was still under investigation by security and that finance had sought an objective conclusion. The foreman Darious Amakadia, alleged to have concealed shortages, testified before the disciplinary hearing while the claimant was absent. These gaps made the summary dismissal premature and procedurally unfair.
Validity of the reason for dismissal - attribution of the stock shortage
The loss could not fairly be attributed solely to the claimant given the employer's own controls and the intervening stock movements after his transfer
The claimant was transferred and went on leave before the counts; the audit noted the handover figures were approximate and that the shortage's modus operandi was still being investigated. Massive stock movements from closed Nakumatt shops occurred in the interim. The respondent's internal controls, not one manager, held the answers to the shortage.
Claimant's own misconduct in refusing to attend stock-take
The claimant's refusal to attend the stock count was a fundamental breach amounting to gross misconduct, warranting discipline but not justifying the summary dismissal on the facts
An employee must attend the workplace on reasonable notice whether on leave or off-duty; refusal is insubordination and gross misconduct. However, this lapse, combined with the respondent's procedural lapses, called only for ordinary termination, not summary dismissal on the unproven loss.
The counter-claim for the stock loss
The counter-claim failed because the loss could not be established against the claimant individually
The audit acknowledged security and finance departments should have investigated the loss; the police report of 4 May 2018 was not a conviction. Attributing 46,000 pairs of shoes to one manager in a chain of departments with internal and external controls was unjustified.
Legal principles established
#- An employer alleging gross misconduct must take the employee through the due process in Section 41(2) of the Employment Act before summary dismissal
- Holding a key witness's testimony before the disciplinary hearing in the employee's absence denies the employee a fair chance to respond
- Refusal to attend a lawful direction to attend the workplace amounts to gross misconduct justifying summary dismissal
- A counter-claim for stock loss cannot be attributed to a single employee where the loss lies within the employer's own chain of controls
Court orders
#- 1.The claimant is awarded Kshs. 252,203 in notice pay only
- 2.The counter-claim is dismissed in its entirety
- 3.Each party to bear own costs
- 4.The file shall be returned to ELRC Nairobi Registry
- Jurisdiction invoked
- Employment and Labour Relations Court, first-instance claim under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamanga v Bata Shoe Company (K) Limited (Cause 1183 of 2018) [2023] KEELRC 2339 (KLR)", Case Analysis (2023). Cause No 1183 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2339/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.