Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause (Nairobi), filed 18th August 2021· [2024] KEELRC 1286 (KLR)

Opap v Tata Chemicals Magadi Limited (Cause E686 of 2021) [2024] KEELRC 1286 (KLR)

Employment and Labour Relations Court
27 May 2024
5,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled Tata Chemicals unfairly dismissed an employee for sharing rumours, but cut his compensation because he partly caused it.

What this practically means

#

Executive summary

#
The Claimant, employed from May 2004 and confirmed as a Draughtsman, rose to Drawing Office Team Leader at Kshs.135,000/= per month. Following the leaking of ongoing performance appraisal ratings within the company, he received a notice to show cause alleging he had accessed and disclosed confidential staff grades without authorisation. After responding to the notice and participating in a disciplinary hearing with a representative, he was dismissed by letter dated 13th July 2021. He sued for a declaration of unfair termination, 12 months' compensation, July salary, alleged irregular deductions, three months' pay in lieu of notice, leave, long service award, pension and a certificate of service. The Respondent defended the dismissal as grounded on breach of its Code of Conduct and Data Protection and Confidentiality Policy. The court found that the Claimant shared only rumours by word of mouth with the Vice-Chair of the Respondent's board of directors, who was not an outsider, that the Respondent adduced no evidence of what confidential information was accessed or how, conducted no demonstrable investigation, and called no witnesses including the Vice-Chair. Substantively, therefore, the dismissal was unjustified; a reprimand or warning would have sufficed. Procedurally, however, Section 41 was complied with. Judgment was entered for the Claimant with a declaration of unfair termination, compensation equivalent of 3 months' gross salary, a certificate of service, and 50% of the costs. Claims for July salary, irregular deductions, notice pay, leave, long service award and pension were declined for lack of proof or having been paid, and 12 months' compensation was reduced due to the Claimant's substantial contribution to the termination.

Key legal issues

#
01

Whether the Respondent proved a valid and fair reason for the termination (substantive fairness)

Holding

No. The Respondent failed to prove on a balance of probabilities that the Claimant accessed confidential information unprocedurally or breached the Code of Conduct and Data Protection Policy; the information shared was rumour, and the recipient was the Vice-Chair of the board, not an outsider.

Reasoning

The Respondent adduced no evidence of what confidential information the Claimant obtained, how or from whom. The Claimant admitted he never saw other employees' ratings and shared only rumours by word of mouth with the Vice-Chair of the board, who is not part of management but supervises it. No investigation was conducted, no witnesses testified at the hearing, and the Vice-Chair neither recorded a statement nor testified. The court held a reprimand or warning would have sufficed.

p. 9
02

Whether the termination procedure was fair under Section 41 of the Employment Act

Holding

Yes. The Respondent complied with Section 41: the Claimant received a notice to show cause, responded, was given time, was invited to a hearing, attended with a representative, participated and signed the minutes.

Reasoning

The notice to show cause articulated the charges and allowed four working days to respond, which was not unreasonable. Clarification was sought and answered. The Claimant was invited to a hearing, attended with a witness, participated and signed the minutes. The court found no evidence on which to fault the procedure, though it noted the committee wrongly curtailed the representative's right to give evidence.

p. 10
03

What compensation is due for the unfair termination under Section 49 of the Employment Act

Holding

The equivalent of 3 months' gross salary, taking into account the Claimant's 17 years of service, clean disciplinary record, but his substantial contribution to the termination and the Respondent's payment of the bulk of the claim.

Reasoning

Under Section 49(1)(c) read with Section 49(4), the court weighed the length of service (about 17 years), the absence of prior warnings, the Claimant's substantial contribution by sharing rumours without credible evidence, his failure to appeal or seek reinstatement, and the Respondent's payment of the bulk of terminal dues in 2022.

p. 11

Legal principles established

#
  • For a termination to pass the fairness test under Section 45 of the Employment Act, the employer must demonstrate both a valid and fair reason (substantive justification) and procedural fairness
  • Under Section 43(2) of the Employment Act, the reasons for termination are the matters the employer genuinely believed to exist at the time, and the employer need only have a reasonable basis for that genuine belief
  • An employee's representative at a disciplinary hearing is entitled to give evidence and make representations, not merely to confirm that the process was fair
  • A company's board of directors is not a separate legal entity from the company but is the policy and decision-making body that supervises management, to which management is accountable

Court orders

#
  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.Equivalent of 3 months gross salary as compensation for unfair termination
  3. 3.Certificate of service
  4. 4.50% of the costs of the suit to the Claimant

Authorities

#

Legislation

  • Employment Act, 2007Section 45(2)(c)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43 and 43(2)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c) and 49(4)
  • Employment Act, 2007Section 51
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Pamela Nelima Lutta V Mumias Sugar Co. Ltd
    (2017) eKLR
  • Joseph Mwaniki Nganga V United Millers Ltd
    (2022) eKLR
  • Galgalo Jarso Jillo V Agricultural Finance of Kenya
    (2021) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 others
    (2019) eKLR
  • British Leyland (UK) Ltd V Swift
    (1981) I.R.L. R 91
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49 and 51); judgment delivered virtually under Article 159(2)(d) and Article 48 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Opap v Tata Chemicals Magadi Limited (Cause E686 of 2021) [2024] KEELRC 1286 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi), filed 18th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1286/eng@2024-05-27

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