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ELRCDismissedNot stated in judgment· [2024] KEELRC 97 (KLR)

Waweru v Vanmed Limited (Cause 856 of 2019) [2024] KEELRC 97 (KLR)

Employment and Labour Relations Court
31 January 2024
JRJames Rika
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a medical worker's dismissal for lateness after he signed a discharge voucher releasing his employer from further claims.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 14th January 2016 as a Medical Representative on a monthly salary of Kshs 200,000, sued over the February 2019 termination of his contract, alleging unfair and unlawful termination, a hostile work environment and bias, and seeking a declaration, 12 months' salary as compensation, punitive and aggravated damages, costs and a Certificate of Service. The Respondent conceded the employment but asserted the Claimant reported for duty under the influence of alcohol, missed work, failed to meet sales targets, and received prior warnings. Following an incident where he arrived late and intoxicated for a surgical procedure at Aga Khan Hospital scheduled for 9.00 a.m. on 17th February 2019, causing the procedure to commence after 10.00 a.m., the Respondent issued a show-cause letter, suspended him, and held a disciplinary hearing before a 5-person committee on 25th February 2019, at which he was entitled but chose not to be accompanied by a colleague. Termination followed; the Claimant was paid terminal dues of Kshs 402,170, including notice pay, and executed an acknowledgement and discharge on 8th March 2019. The Court found the procedure fair under Sections 41 and 45 of the Employment Act and the reason valid under Sections 43, 44(4) and 45, characterising the lateness as negligence constituting gross misconduct. The hostile work environment plea was unsupported by evidence. Relying on Coastal Bottlers Limited v Kimathi Mithika, the Court held the unequivocal discharge barred further claims. The Claim was declined with costs to the Respondent.

Key legal issues

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01

Fairness of procedure under Section 41

Holding

Procedure was fair; the Claimant was given a show-cause letter, replied, was invited to a disciplinary hearing with the right to be accompanied, and was heard

Reasoning

The Claimant conceded receipt of a show-cause letter which he answered. He was invited to a hearing before a 5-person committee, initially denied but quickly recanted the claim that he was not advised of his right to bring a colleague, and did not dispute being heard. The Court found no fault with the procedure.

p. 3
02

Valid reason under Sections 43, 44(4) and 45

Holding

Arriving late for a scheduled surgical procedure while nursing an alcohol-induced hangover was negligence amounting to gross misconduct justifying termination

Reasoning

The Claimant drank until midnight before a 9.00 a.m. theatre procedure at Aga Khan Hospital and arrived late, delaying the procedure. The Surgeon confirmed the delay to the disciplinary committee. Section 44(4)(c) covers carelessly or improperly performed duties; the Respondent validly concluded the Claimant was guilty of negligence constituting gross misconduct.

p. 3
03

Effect of executed discharge on the remedies sought

Holding

The unequivocal discharge executed freely and willingly barred the Claimant's claim for further remedies

Reasoning

The Claimant received Kshs 402,170 in terminal dues including notice pay, acknowledged receipt and released the Respondent from all actions, proceedings, claims or demands arising from final dues. No coercion was suggested. Following Coastal Bottlers Limited v Kimathi Mithika, the Court noted it could have declined to entertain the claim had the discharge been raised preliminarily.

p. 4

Legal principles established

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  • An employee who has executed a discharge voucher is deemed to have waived the right to make further claims relating to termination of his contract

Court orders

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  1. 1.The Claim is declined
  2. 2.Costs to the Respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair and unlawful termination claims under the Employment Act 2007

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, "Waweru v Vanmed Limited (Cause 856 of 2019) [2024] KEELRC 97 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/97/eng@2024-01-31

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