Okwirry v Honda Motorcycle (K) Ltd (Cause E026 of 2022) [2024] KEELRC 1912 (KLR)

Section 41 of the Employment Act requires that before termination on grounds of misconduct an employee be granted an opportunity to make representations in the presence of a colleague or trade union representative. The Claimant was summoned by telephone; the notice to show cause was not produced in evidence; the invitation letter did not inform him of his right to be accompanied; and the preparation time was short. These breaches of mandatory procedure rendered the dismissal procedurally unfair.

Under Sections 43 and 45(2) of the Employment Act, the employer bears the burden of proving valid and fair reasons for termination. The Respondent's witness testified that sales were made without corresponding deposits and the Claimant's M-pesa statement showed receipt of the monies. The Claimant's written statement at the disciplinary hearing admitted disposing of 8 motorcycles and using the funds for personal purposes, and this evidence was not controverted at trial.

The Respondent produced a final dues calculation covering days worked and untaken leave, but used it to off-set part of the Kshs 400,000/- subject of the dismissal. Since the Respondent admitted being compensated by its insurer for that loss, deducting the same amount again from the Claimant's dues would unjustly enrich the employer. The Claimant was therefore entitled to that payment.

Although the dismissal was procedurally flawed, it was substantively fair. The court exercised its discretion under Section 49 of the Employment Act, taking into account the Claimant's admission that he received the money from motorcycle sales and used it for his own purposes. In the circumstances, one month's salary was deemed sufficient compensation rather than the 12 months sought.