KENYA GUARDS & ALLIED WORKERS’ UNION v FACTORY GUARDS CO. LTD [2007] KEELRC 5 (KLR)
The bottom line
#Kenya's Industrial Court upheld a driver's summary dismissal because hiding a company-vehicle accident exposed his employer to criminal prosecution.
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's failure to report a road traffic accident to the Company or the police amounted to misconduct justifying summary dismissal under Section 17(c) and (g) of the Employment Act, Cap. 226
- 2.Whether the principles of natural justice were violated by the Company in summarily dismissing the grievant without first affording him an opportunity to defend himself
- 3.Whether the grievant was entitled to the terminal dues claimed (notice pay, unavailed leave, leave travelling allowance, gratuity and 12 months' compensation)
Key legal issues
#Whether concealment of a road traffic accident amounted to misconduct justifying summary dismissal
The grievant's concealment of the offence, which would have occasioned criminal prosecution of the Company's management, amounted to misconduct justifying the summary dismissal
The grievant was involved in a road accident driving a company vehicle and failed to report it to the Company or the police as required by Section 73(3) of the Traffic Act. Section 75 of that Act made the concealment punishable. The Court, applying Pearce v. Foster, held that conduct prejudicial to the employer's interests - including exposure to criminal prosecution - constitutes misconduct justifying immediate dismissal, and Section 17 of the Employment Act is enumerative rather than exhaustive.
Whether natural justice was violated by failure to give the grievant a hearing before dismissal
No violation of natural justice because the grievant admitted his guilt
The Union contended the grievant should have been informed of the alleged misconduct and given an opportunity to explain. The Court found that the grievant admitted liability after questioning and conceded the offence, so no denial of natural justice arose. The warning procedure argument also failed because the dismissal was for concealment exposing the Company to prosecution and damages.
Legal principles established
#- Conduct of an employee which may lead to criminal prosecution of his employer amounts to misconduct justifying summary dismissal
- Where an employee admits his guilt, there is no denial of the principles of natural justice in summary dismissal
Court orders
#- 1.The demand/claim on behalf of the grievant is rejected in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya - reference by the Minister for Labour
Relief refused
#Terminal dues totalling Kshs. 131,699/= (one month's pay in lieu of notice Kshs. 6,943/=; unavailed leave Kshs. 850/=; leave travelling allowance Kshs. 6,943/=; 7 years' gratuity Kshs. 33,647/=; 12 months' compensation Kshs. 83,316/=)
The grievant's concealment of the offence, which would have entailed criminal prosecution of the management of the Company, amounted to misconduct justifying summary dismissal, and the grievant had admitted his guilt so there was no denial of natural justice
Costs
No costs order made in the award
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.
In our opinion, the conduct of an employee, which may lead to criminal prosecution of his employer, would amount to misconduct.
If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal.
In the circumstances, there was no denial of the principles of natural justice as the grievant had admitted his guilt. The case, therefore, fails and the demand is rejected.
Issues in the judgment
#Internal inconsistency in the judgment: the Minister's investigation report stated 'a warning and surcharge would have sufficed', and the Company's own account recorded that the grievant offered to settle the matter with the third party, yet the Court found the dismissal justified notwithstanding these mitigating facts; also the counsel name appears as 'Mr. T.K. Kariba Mbabu' while the judgment elsewhere refers to 'Mr. Mbabu'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA GUARDS & ALLIED WORKERS’ UNION v FACTORY GUARDS CO. LTD [2007] KEELRC 5 (KLR)", Case Analysis (2007). Cause No. 53 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/5/eng@2007-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.