Kenya Union of Road Contractors and Civil Engineering Workers v H. Young & Company (E.A) Limited (Cause E742 of 2021) [2024] KEELRC 885 (KLR)
The bottom line
#Even when an employer proves misconduct, sacking a worker without a fair hearing in Kenya still makes the dismissal unfair and costly.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to terminate the Claimant's employment
Yes - the Respondent proved on a balance of probabilities that it genuinely believed the Claimant participated in siphoning fuel
The CCTV captured the Claimant driving KBA 984G arriving at the parking at 19.10 hours and participating in the siphoning of fuel from Stafi Bus 11 in the company of a security guard. The Claimant gave contradictory versions of the events of 11th and 12th March, 2020, which the court found to be of nominal probative value. Section 43(2) applies a genuinely-believed-reason test on a balance of probability.
Whether the termination complied with Section 41 of the Employment Act (procedure)
No - the Claimant was never invited to a hearing after responding to the notice to show cause
Although the Claimant responded to the notice to show cause and was suspended, the suspension letter promised a hearing on a date to be communicated but none was convened. The investigation report was not furnished to him. He was condemned unheard, breaching the mandatory process in Section 41, rendering the termination procedurally flawed and unfair.
Entitlement to the reliefs sought
Declaration, 16 days' salary for March 2020, one month's gross salary as compensation, and Kshs.25,000/= direct costs; other heads declined for want of proof
Days worked were admitted and payable. Notice pay failed for lack of a contract or CBA and because dismissal was summary. Union dues deductions were unproven and union membership undisclosed. Service pay was barred by Section 35(6)(d) as the grievant was an NSSF member. Compensation was assessed at one month's salary given the grievant's contribution to the dismissal.
Legal principles established
#- For a termination to be fair there must be both substantive justification and procedural fairness
- The employer need only genuinely believe the ground for termination exists; the ground need not in fact exist
- Standard of proof in unfair termination is on a balance of probability, a partly subjective test
- Failure to accord an employee a hearing under Section 41 renders a termination procedurally flawed and unfair
Court orders
#- 1.Declaration that termination of employment was unfair.
- 2.16 days salary for March 2016 [2020].
- 3.Equivalent of one (1) month's gross salary as compensation under Section 49(1)(c) of the Employment Act.
- 4.Reimbursement of direct costs at Kshs.25,000/=.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Road Contractors and Civil Engineering Workers v H. Young & Company (E.A) Limited (Cause E742 of 2021) [2024] KEELRC 885 (KLR)", Case Analysis (2024). Cause No E742 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/885/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.