Omondi v Unilever Kenya Limited (Cause 794 of 2019) [2024] KEELRC 2012 (KLR)
The bottom line
#Unilever Kenya was ordered to pay a former manager Ksh. 1.68 million after a court found his dismissal unfair because accusations kept changing during his disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was for valid reason
The termination lacked valid reason because cogent evidence showed the discharge of effluent was sanctioned by the Claimant's supervisor, John Onguti, while the Claimant was off duty.
Both parties agreed the Claimant was away from the workplace when the waste was dumped around 5.00 PM. Other employees carried out the disposal on the instructions of the factory manager. A reasonable employer facing these facts would not have concluded that the Claimant authorised the discharge, so the Respondent failed to discharge its burden under section 43 of the Employment Act.
Whether the procedure was fair
The procedure was unfair because the Claimant was confronted at the disciplinary hearing with accusations beyond those in the notice to show cause, without prior notice or disclosure of materials.
The notice to show cause concerned the events of 14th May 2019, but the hearing introduced matters dating back to March 2019, alleged KPI failures and a Job Description never shared with the Claimant. This contravened section 4 of the Fair Administrative Action Act and articles 41 and 47 of the Constitution, depriving him of the opportunity to prepare his defence.
Whether the Claimant failed to report the incident
The Claimant adequately reported the incident to his supervisor and in his response to the notice to show cause, and the Respondent's management was already aware of the incident.
The Claimant raised the matter with John Onguti the following day in line with the reporting structure, and addressed it in his formal response to the notice to show cause. Management knew of the incident by 14th May 2019, so a further report from the Claimant would have served no purpose. His informal WhatsApp reply was a private exchange not addressed to the Respondent.
Whether the employee was bound by a Job Description never issued to him
It was inappropriate to find the Claimant in breach of KPIs based on a Job Description he saw for the first time at the disciplinary hearing.
The Claimant's supervisor admitted he had never held formal discussions on the Claimant's roles or shared the Job Description with him. An employee cannot speculate on his responsibilities with exactitude where the employer never communicated them, so the Disciplinary Committee had no basis for the KPI finding.
Legal principles established
#- An employer must demonstrate both valid substantive grounds and fair procedure for a termination to be lawful.
- The employer need only show reasonable grounds to believe the employee committed the infraction, not infallible evidence.
- The court applies the range of reasonable responses test and will not substitute its own view for the employer's.
- An employee cannot be faulted for failing to discharge duties under a Job Description never shared with him.
Court orders
#- 1.A declaration that the Respondent's decision to terminate the Claimant's employment was unlawful
- 2.Compensation for unfair termination equivalent to six months' salary, Ksh. 1,679,090.10
- 3.The award is subject to applicable statutory deductions
- 4.Interest on the award at court rates from the date of the decision
- 5.Costs of the case to the Claimant
- Jurisdiction invoked
- Sections 41, 43, 44, 45 and 49 of the Employment Act as read with articles 41 and 47 of the Constitution of Kenya, 2010 and section 4 of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi v Unilever Kenya Limited (Cause 794 of 2019) [2024] KEELRC 2012 (KLR)", Case Analysis (2024). Cause No 794 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2012/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.