Kamidi v DHL Worldwide Express (K) Ltd (Cause 52 of 2019) [2023] KEELRC 3436 (KLR)
The bottom line
#A Kenyan court ruled DHL unfairly dismissed an employee returning from maternity leave, but she won less because her discrimination claim lacked documentary proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was substantively fair
The Respondent had a reason for dismissal (the Claimant's role in the disappearance of a shipment cleared without customer authorisation), but the Claimant was in the court's view a patsy in a scheme hatched by others
The court accepted that the Respondent asserted a reason connected to the lost shipment valued at USD 7,103. However, the investigation showed the scheme was hatched by Ms. Winnie Chepkwony and others, and the Claimant was heaped with all the blame. The reason existed but the blame attribution and timing rendered the dismissal unjust in part.
Whether the dismissal was procedurally fair
The dismissal was procedurally flawed - no show cause letter was produced, and the hearing process was not demonstrably followed
RW1 admitted no show cause letter was in the records and could not confirm whether a hearing took place. Although statements were recorded during investigations, the court found the manner of execution manifestly unjust: the Claimant was demoted before ascertainment of reasons and dismissed without a chance to improve.
Whether the Claimant was discriminated against on account of pregnancy
The discrimination claim failed for lack of proof
The Claimant admitted she never filed a complaint with the Respondent or in court regarding discrimination, and produced no documentation. Under sections 107 and 108 of the Evidence Act the burden lay on her, and the termination letter showed the dismissal was based on the lost shipment, not pregnancy.
Appropriate remedies
One month's notice pay and six months' salary as compensation awarded; the maximum 12 months was not granted
Although the court found the dismissal unjust, it reduced compensation in light of the Claimant's contribution to the loss (clearing paperwork without authorisation). Notice pay was awarded since summary dismissal without notice still engages section 35 considerations; the court granted Kshs. 105,600/- notice and Kshs. 633,600/- compensation.
Legal principles established
#- An employer must prove both the reason for dismissal and that a fair procedure was followed; where no show cause letter or disciplinary hearing is evident, the dismissal is procedurally unfair even if a reason exists.
- Dismissing an employee upon return from maternity leave, without first ascertaining the reason for alleged poor performance or affording an opportunity to improve, is unjust and informs a reduced compensatory award rather than the statutory maximum.
Court orders
#- 1.One month's notice pay of Kshs. 105,600/-
- 2.Six months' salary as compensation for unfair termination, being Kshs. 633,600/-
- 3.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (termination of employment and discrimination contrary to the Constitution of Kenya and the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamidi v DHL Worldwide Express (K) Ltd (Cause 52 of 2019) [2023] KEELRC 3436 (KLR)", Case Analysis (2023). Cause No 52 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3436/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.