Catherine Kathini Mulatya v Inncor Kenya Limited [2016] KEELRC 5 (KLR)

had happened. Even though she was asked to write a statement before termination, there was no chance for hearing. Defence 7. In defence, the respondent’s case is that they employed the Claimant but was justifiably dismissed for gross misconduct which reasons were set out in the letter of termination. The Claimant failed and neglected to hand over company property in her custody for clearance to allow the Respondent pay her terminal dues in accordance with the set policy. No remedies are due as claimed. 8. No witness was called to support the defence. 9. Both parties filed written submissions. The submissions by both parties only reiterate matters set out in the pleadings. Determination 10. By letter dated 16th September 2013, the Respondent dismissed the Claimant from her employment on the grounds that; Theft – you were found to have dispatched an order without a docket. This means that you did not follow the stipulated procedures. 11. The claim is therefore that the dismissal was irregular and unlawful on the basis that there was no notice and hearing while the defence is that the Claimant committed gross misconduct and was given a chance to write her statement in defence. 12. Section 44 of the Employment Act give an employer the right to summarily dismiss an employee but there are procedural requirements to be followed for the same to be lawful and to ensure the employee is given safeguard to avoid abuse and violation of rights at work. However, whatever misconduct is committed an employer is required to ensure the protections set out under section 41(2) of the Employment Act by; (2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make. 13. The above provisions are mandatory unless an employer is able to demonstrate that there existed exceptional circumstances that they were not able to issue notice or hear the employee. Such circumstances must be demonstrated. The court must be satisfied that the employee was given notice and a hearing and where not possible, what constraints existed. Without such demonstration, a dismissal that is without due process becomes procedurally unfair in terms of section 45 of the Employment Act. 14. It is not sufficient that the employer is willing to pay for notice. Even where there is such an offer, the legal procedural protections due to an employee must be guaranteed and ensured before a dismissal can be found to be lawful. In this case, the Claimant was directed to write her statement but such a statement is not a substitute to a hearing as set out under section 41 of the Employment Act. At such a hearing forum, the employee is allowed to call and make representations in the presence of a fellow employee and call any other evidence from the shop floor as this is the primary source of such evidence. Without being given the right to a hearing and presence before a representative, the safeguards set in law are lost and the resulting dismissal is negated due to this illegality. 15. The Respondent in the notice of dismissal state that the Claimant failed to follow the stipulated procedures in dispatching an order without a docket. However, the stipulated procedures are not set out as to what exactly the Claimant did or failed to do and where the policy procedures were available for

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reference. It therefore becomes very subjective in the instant case to simply dismiss an employee without making available the standards or procedures required to be adhered to that are alleged to have been violated. The dismissal was therefore not justified and failed to comply with mandatory provisions of the law under section 44, 41 and 45 of the Employment Act. Remedies 16. As noted above, parties have since filed consent on several items save for compensation due for unlawful termination of employment. Based on the above findings that there was unfair termination, and putting into account the settlement of the parties, a compensation of 6 months gross pay is found appropriate in terms of section 49 of the Employment Act. The Claimant was earning Kshs.12, 570.00 at the time of dismissal and is awarded Kshs.99, 420.00. 17. Costs are also due at 50%. Judgement is hereby entered for the Claimant against the Respondent with a declaration that the termination of employment was unlawful and unfair; the Claimant is awarded compensation at Kshs.99, 420.00; and costs at 50%. Delivered in open court at Nairobi this 8th day of December 2016. M. MBARU JUDGE In the presence of: ……………………… ………………………

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