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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 92 (KLR)

Simiyu v CBRE Corporate Outsourcing [PTY] Limited (Cause E390 of 2021) [2024] KEELRC 92 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2024
JRJames Rika
3,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a dismissal where the employer followed fair procedure and had genuine reasons to fire an employee over procurement misconduct.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 12th September 2016 on a written contract as Facilities Manager, stationed at its client British American Tobacco-Kenya, sued for unfair and unlawful termination. Her contract was terminated on 20th September 2019 following disciplinary proceedings on three charges: applying company/client funds for unauthorized purposes by receiving payments into her M-pesa account without supporting documentation, failure to adhere to procurement policies, and breaching the Code of Conduct. She sought a declaration that termination was unfair, one month's salary in lieu of notice, twelve months' compensation, a certificate of service and costs. The Respondent maintained termination was for valid reason and procedurally fair. The Court framed three issues: procedural fairness under section 41, valid reason under section 43, and the relief merited. On procedure, the Court found the Claimant was investigated, served with clear charges, supplied with the Lukorito investigation report and witness interview records, given a personal hearing before an independent chair, and an appeal which she exercised and lost; suspension without pay was quickly corrected. On substance, evidence showed the Claimant directed suppliers to pay money into her M-pesa account, had suppliers quote above market rates with the Respondent billed at 15% extra, and there was double costing on some supplies. The Court held the employer needed only the civil standard under section 43 and genuinely believed the reasons for termination. The Claim was declined in its entirety, with no order as to costs. Judgment was dated, signed and released electronically at Nairobi on 31st January 2024 by James Rika, Judge.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

Procedure was fair: the Claimant was investigated, served with clear charges, supplied with the investigation report and witness interviews, heard personally, and given a right of appeal which she exercised.

Reasoning

The Respondent investigated the allegations, corrected its initial suspension without pay, convened a disciplinary hearing, supplied clearly worded charges plus the Lukorito report and interview records, and gave a personal hearing before an independent chair. The Claimant conceded she was advised of her rights and appealed; she did not show any contractual or procedural entitlement to a personal hearing on appeal.

p. 4
02

Substantive fairness / valid reasons under section 43

Holding

Termination was based on valid reasons: the Claimant received payments into her M-pesa account without documentation and had suppliers bill the Respondent at 15% above cost, contrary to procurement policy and standards of business conduct.

Reasoning

The Lukorito report and documentary evidence showed the Claimant directed suppliers to pay money to her phone, inflated quotations (cameras procured at Kshs. 38,000 quoted at Kshs. 66,000), and double-charged on supply of tint. Her explanations did not displace these findings. Section 43 requires only that the employer genuinely believed the reasons existed.

p. 6
03

Standard of proof and evidential burden on the employer's allegations

Holding

The employer was required only to meet the section 43 standard, not the criminal standard, and the Claimant's failure to request witnesses or call suppliers at the disciplinary hearing undermined her defence.

Reasoning

Although Lukorito and interviewees were not called, the Claimant never requested the disciplinary committee to call them, nor did she call suppliers to rebut the findings, despite having the interview records. The Court held the civil standard under section 43 sufficed and found the allegations proved on the material before the committee.

p. 6

Legal principles established

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  • The reason for termination under section 43 is what the employer genuinely believed to exist at the time of termination
  • In unfair termination claims the employer need not prove allegations beyond reasonable doubt, only to the standard under section 43
  • An employee is not entitled to create her own scheme of procurement practice

Court orders

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  1. 1.The Claim is declined.
  2. 2.No order on the costs.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, sections 41 and 43 (original employment claim)

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, "Simiyu v CBRE Corporate Outsourcing [PTY] Limited (Cause E390 of 2021) [2024] KEELRC 92 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/92/eng@2024-01-31

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