[2018] KEELRC 1599 (KLR)
The court found that there was no evidence the claimant was called to a disciplinary hearing or confronted with the evidence against him after the allegations of bribery were confirmed. This omission violated the mandatory procedural requirements under the Employment Act, specifically the right to be heard before...
Source-derived case information.
- Citation
- [2018] KEELRC 1599 (KLR)
- Parties
- Claimant: Khamisi Abdalla Ngonyo; Respondent: Steelmakers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1640 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant; dismissal declared unfair; compensation and dues awarded.
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Disciplinary Process, Summary Dismissal, Terminal Dues, Employee Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Khamisi Abdalla Ngonyo
Claimant
Steelmakers Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was accorded a fair hearing before dismissal.
- 2 Whether the summary dismissal of the claimant was unfair under the Employment Act.
- 3 Whether the claimant is entitled to terminal dues and compensation for unfair dismissal.
Ratio Decidendi
The court found that there was no evidence the claimant was called to a disciplinary hearing or confronted with the evidence against him after the allegations of bribery were confirmed. This omission violated the mandatory procedural requirements under the Employment Act, specifically the right to be heard before termination. Consequently, the summary dismissal was deemed unfair, entitling the claimant to compensation and terminal dues as stipulated by law.
Court Disposition
Judgment for the claimant; dismissal declared unfair; compensation and dues awarded.
Orders
- Respondent to pay claimant one month’s salary in lieu of notice.
- Respondent to pay claimant salary for August, September, and October 2011.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 1640 OF 2013
KHAMISI ABDALLA NGONYO...........................................CLAIMANT
VERSUS
STEELMAKERS LIMITED..............................................RESPONDENT
JUDGEMENT
1. The claimant averred that he was employed as a machine operator by the respondent in 2006 and was later promoted to a supervisor. His monthly salary at the time of termination was Kshs 9,400/=.
2. On 26th August,2011he claimed he went over his duties as usual.
By about 7:40 am he had finished recruiting new employees when the manager Mr Namhau called him to his office and issued him with a suspension letter. He was accused of soliciting bribes from the new recruits. On 8th November, 2011 after the conclusion of investigations he was issued with a dismissal letter. The claimant complained that before the dismissal he was never called to give his side of the story. He further complained that upon dismissal the respondent never paid him his terminal dues.
3. The respondent on its part denied the claimant discharged his duties and accused him of several acts of corruption. The respondent further averred that the claimant was summoned by the Human Resource Head where the allegations were explained to him and was given opportunity to be heard before dismissal.
4. At the trial both sides repeated the averments in their pleading hence need to reproduce there oral testimony. The claimant was suspended on 26th August, 2011 on allegations of bribery. The suspension was stated to be pending investigations. On 8th November, 2011 he was issued with a letter of summary dismissal. The letter informed him that the allegations of bribery against him had been confirmed.
5. There was no material on record that once the allegations of bribery were confirmed the claimant was called to a disciplinary hearing where he was confronted with the evidence and his reactions sought. This is an essential requirement under the Employment Act and failure to observe this leads to the termination or dismissal being deemed unfair.
6. The court therefore so finds and awards the claimant as follows
a. One month’ salary in lieu of notice 19,400
b. Salary for August, September and October 58,200
c. Salary for 8 days in November 5,173
d. Accrued leave for one year 19,400
e. Six months salary as compensation for
Unfair dismissal 116,400
218,573
f. Items (a) to (e) shall be subject to taxes and statutory deductions.
g. Costs of the suit.
7. It is so ordered.
Dated at Nairobi this 6th day of July, 2018
ABUODHA J. N.
JUDGE
Delivered this 6th day of July, 2018
ABUODHA J. N.
JUDGE