Mwita v DHL World Wide Express Kenya Limited (DHL) (Cause E1005 of 2021) [2023] KEELRC 3101 (KLR)
The bottom line
#A Kenyan court awarded DHL's former CFO Kshs 9.1 million, ruling the company unfairly dismissed him for conduct that was actually his HR department's job.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reasons for summary dismissal
The reasons were neither valid nor fair; the impugned conduct (handbook amendments and 13th month cheque) fell within the HR Department's mandate and not the claimant's role as CFO
The Court examined each allegation against sections 43 and 45 of the Employment Act. Document metadata showed the author of the handbook amendments was Kenneth Kaunda, head of HR Kenya. Email correspondence for 2020 and 2021 showed 13th month cheque approvals were sought from and addressed to the head of HR in Kenya, excluding the claimant. The respondent failed to show the amendment function was contractually vested in the claimant, so adverse consequences could not be visited on him.
Procedural fairness of the disciplinary process
The respondent substantially complied with section 41 of the Employment Act; the suspension and disciplinary hearing were procedurally proper
The notice of inquiry served the purpose of a notice to show cause; the suspension was on full pay within the Disciplinary Procedure; the claimant was granted access to documents and invited to a hearing before an impartial panel; the hearing was recorded in minutes and an appeal was heard. However, one reason (behaviour at the disciplinary hearing) was introduced without notice and hearing, offending section 41.
Remedies for unfair termination
Reinstatement declined as impracticable; the claimant awarded one month's salary in lieu of notice and 10 months' gross salary as compensation for unfair termination
Under section 49 of the Employment Act, reinstatement requires exceptional circumstances and was impracticable because the CFO position had been filled. Considering the clean service record, the absence of culpability, the respondent's procedural compliance, and the claimant's remote failure to verify regional approvals, 10 months' gross salary (Kshs 8,288,895.80) met the ends of justice, plus notice pay of Kshs 828,889.58.
The respondent's counterclaim for Kshs 126,633.34 fuel expenses
The counterclaim failed as it was not strictly proved and appeared to be a mere afterthought
A liquidated claim must be specifically pleaded and strictly proved. The respondent failed to show the fuel card credentials, that the claimant expended the claimed amounts, that demand and refusal occurred, and it made no claim at termination despite the alleged accrual during the disciplinary period.
Legal principles established
#- An employer must establish the employee's conduct and its operational requirement for a termination reason to qualify as valid under section 43 and fair under section 45 of the Employment Act; mere presence of amendments and an employee's non-denial of awareness cannot presume involvement.
- It would be unfair labour practice to terminate a manager on account of breach of trust by a subordinate officer, since managers are entitled to trust those working under them.
- A liquidated claim must be specifically pleaded and strictly proved; a counterclaim not raised or demanded at the relevant time may be an afterthought.
Court orders
#- 1.Declaration that the termination of the contract of service by the respondent was unfair and unjustified as the reasons for summary dismissal were not valid and were unfair
- 2.The respondent to pay the claimant Kshs 9,117,785.38 less PAYE by 01.02.2024, failing which interest at Court rates from the date of judgment until full payment
- 3.Dismissal of the counterclaim with costs to the claimant
- 4.The respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45 and 49) over unfair termination claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwita v DHL World Wide Express Kenya Limited (DHL) (Cause E1005 of 2021) [2023] KEELRC 3101 (KLR)", Case Analysis (2023). Cause No E1005 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3101/eng@2023-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.