Radar Hardware Limited v Charles (Appeal E078 of 2023) [2024] KEELRC 393 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Fairness of the termination process
Termination was unfair because the respondent was not given notice of a disciplinary hearing as required under Section 41 of the Employment Act
The court found the notice dated 13 January 2020 to attend a disciplinary hearing was not received by the respondent; the approved annual leave notice was the most probable notice received. The certificate of service wrongly recorded the reason as resignation. The employer had a duty to apply its disciplinary procedures before termination, even where the alleged conduct could also be a criminal or traffic matter.
Matters not pleaded - alcoholism
The trial court did not err; the intoxication was pleaded in the Response to the claim and supported by evidence
The appellant itself pleaded in its Response that the claimant was found drunk while operating the truck at Malili checkpoint, and its witness testified to the Alco blow test. Parties being bound by pleadings, the finding was properly grounded on the pleadings before the trial court.
Assessment of compensation
The trial court's award of 8 months' compensation was set aside; compensation was reduced to zero because the respondent's intoxication at work warranted summary dismissal under Section 44(4)(b), and only notice pay was due for the procedural lapse
While termination was procedurally flawed, the substantive conduct (being intoxicated while driving the truck) justified summary dismissal. The trial court failed to consider the employee's conduct and culpability under Section 45(5), and its generalised award lacked analysis per Section 118(4).
Leave pay for 2016 and 2017
Awarded at Kshs. 49,438 based on basic wage; the claims did not abate during continuing employment and there was no record leave was taken
The employer offered no record that annual leave for 2016 and 2017 was taken; continuing employment meant the claims did not abate. Payment of due leave is based on the basic wage per Section 28 of the Act, and the payment statement showed a basic wage of Kshs. 24,719.
Costs of the lower court and appeal
Each party to bear own costs because the trial court gave no reasons for its costs award
Costs in employment claims are discretionary and reasons must be given where costs are awarded. Since the trial court outlined no reasons, each party should meet its own costs.
Legal principles established
#- The employer's internal disciplinary process is distinct from criminal proceedings arising from the same facts, and the standard of proof differs
- A Certificate of Service under Section 51 of the Employment Act is mandatory and should only note the date and termination of employment, unlike a voluntary letter of recommendation
- An employee's disciplinary record and culpability must be considered in assessing compensation under Section 45(5) of the Employment Act
- Section 118(4) of the Employment Act obliges the court to analyse each claim made by an employee and give reasons for the award or rejection of it
Court orders
#- 1.Employment terminated without due process
- 2.Compensation awarded at zero (0)
- 3.Notice pay awarded at Kshs. 35,000
- 4.Leave pay awarded at Kshs. 49,438
- 5.Each party to bear own costs of the lower court proceedings and for this appeal
- On appeal from
- Chief Magistrate's Court (ELRC), Mombasa
- CM ELRC No. 243 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court employment claim (Employment Act, 2007; ELRC Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Radar Hardware Limited v Charles (Appeal E078 of 2023) [2024] KEELRC 393 (KLR)", Case Analysis (2024). Appeal No E078 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/393/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.