TRANSPORT & ALLIED WORKERS’ UNION v KENYA AIRWAYS LTD [2002] KEELRC 43 (KLR)
The bottom line
#Kenya's Industrial Court ruled an employee cannot be summarily dismissed for intending misconduct that was never actually completed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the grievant intended to steal or convert the assorted items removed from aircraft KQ 103 to her own use, or whether she intended to take them to the Catering Office in Unit 3 for safe keeping
- 2.Whether the summary dismissal of the grievant was justified
- 3.Whether the Minister for Labour's recommendation that the dismissal be set aside and the grievant reinstated should be upheld
Key legal issues
#Whether the grievant committed the misconduct of theft or conversion of Company property
The Court found the grievant not guilty of the alleged offence; her apology did not amount to an unequivocal admission of theft or conversion, and mere intention is not misconduct in law
The Court found the grievant removed the items but had been intercepted on the apron before reaching the Catering Office, so the offence was not completed. Her recorded statement showed regret but no categorical admission of theft or conversion. With two possibilities equally open, the favourable one should be adopted; mere intention is not misconduct unless the offence is complete.
What remedy flows from an unjustified summary dismissal where reinstatement is impracticable
The summary dismissal was reduced to normal termination with full terminal benefits and compensation of twelve months' salary
Although the Court accepted the Minister's finding that dismissal was harsh, it declined reinstatement because seven years had passed and relations with management were uncordial. It instead awarded normal termination benefits under the collective agreement plus twelve months' salary as compensation for loss of employment.
Legal principles established
#- An intention to commit an offence does not amount to misconduct unless the offence is completed
- Where two explanations of an employee's conduct are equally possible, the position favourable to the employee should be followed
Court orders
#- 1.The summary dismissal of the grievant be reduced to normal termination of service
- 2.The grievant be paid all her terminal benefits, including her own and the Company's contributions to the Provident Fund Scheme, in terms of the parties' collective agreement in force at the material time
- 3.The grievant be paid compensation equivalent to twelve (12) months' salary for loss of employment, based on her last salary when she was summarily dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (reference by the Minister for Labour)
Relief refused
#Reinstatement of the grievant to her former job as recommended by the Minister for Labour
Seven years had elapsed since the summary dismissal and relations between the grievant and management were uncordial
Costs
No costs order recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
But in law an intention to commit an offence per se does not amount to misconduct unless the offence is committed completely.
As both positions were equally possible, the position favourable to the grievant should have been followed.
Accordingly, I AWARD and ORDER that the summary dismissal of the grievant be reduced to normal termination of service and she be paid all her terminal benefits, including her own and the Company's contributions to the Provident Fund Scheme, in terms of the parties' collective agreement in force at the material time.
In addition, the grievant be paid compensation equivalent to twelve (12) months' salary for loss of employment, based on her last salary when she was summarily dismissed from employment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TRANSPORT & ALLIED WORKERS’ UNION v KENYA AIRWAYS LTD [2002] KEELRC 43 (KLR)", Case Analysis (2002). Cause No. 72 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/43/eng@2002-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.