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ELRCPartially AllowedELRC Cause (Mombasa) - Statement of Claim filed 13th June 2013

Said Ndege v Steel Makers Limited [2018] KEELRC 303 (KLR)

Employment and Labour Relations Court
21 December 2018
2,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a dismissal for attempted theft but still awarded the employee his gratuity and unpaid leave pay.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 12th May 1986 as a Crane Helper and later Crane Operator at a monthly salary of Kshs. 19,912, was summarily dismissed on 18th June 2012 after being found moving 2 pieces of metal (misrolls) behind the Guardhouse, which the Respondent treated as attempted theft under Section 44(4)(g) of the Employment Act. He sought notice pay, annual leave pay for 2012, gratuity for 25 years' service, 12 months' compensation for unfair termination, declarations of unfair termination and penal consequences for non-issue of a Certificate of Service, plus costs and interest. The Respondent maintained the dismissal was lawful, citing the Claimant's written apology confessing the offence, prior warnings, and CBA provisions permitting summary dismissal. The Court found the dismissal substantively and procedurally fair: the Claimant was caught red-handed, confessed in writing, and his Union's Shop Stewards were involved throughout, making a disciplinary hearing unnecessary. The claims for notice pay and compensation were dismissed. However, the Court found the Claimant entitled to annual leave pay for 2012 (Kshs. 19,912), as the Respondent proved no payment, and to gratuity under clause 31 of the CBA (Kshs. 306,338, computed at 16 days' salary per complete year for 25 years), holding the CBA did not exclude summarily dismissed employees and that CBA benefits supplement statutory ones. The Certificate of Service declaration was refused as unnecessary, the statutory remedy lying elsewhere. Interest at 14% per annum was awarded from the date of termination, with no order on costs. Judgment delivered at Mombasa on 21st December 2018 by James Rika, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent had valid reason to summarily dismiss the Claimant
  2. 2.Whether the procedure adopted in terminating the Claimant's employment was fair
  3. 3.Whether the Claimant is entitled to notice pay and 12 months' compensation for unfair termination
  4. 4.Whether the Claimant is entitled to annual leave pay for 2012
  5. 5.Whether the Claimant is entitled to gratuity under clause 31 of the CBA despite summary dismissal
  6. 6.Whether failure to issue a Certificate of Service attracts penal consequences declarable by the Court
  7. 7.Whether the Claimant merits interest and costs

Key legal issues

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01

Validity of reason for summary dismissal

Holding

Dismissal was substantively fair; the Claimant was caught attempting to steal and confessed in writing

Reasoning

The Respondent's witnesses saw the Claimant move 2 pieces of metal behind the Guardhouse, a non-production area, with a low perimeter wall suggesting intent to remove them from the compound. His letter of apology admitted taking the misrolls. The offence fell under Section 44(4)(g) of the Employment Act and clause 24(b)(vii) of the CBA, satisfying Sections 43 and 45.

p. 3
02

Procedural fairness

Holding

Procedure was fair; the Claimant was suspended, his Union Shop Stewards involved, and he admitted the offence in writing, making a hearing unnecessary

Reasoning

The Claimant was suspended for 7 days to allow investigations; he returned the same day with an apology admitting the offence. With Shop Stewards involved at every turn and a written confession, a disciplinary hearing would have served no purpose.

p. 3
03

Entitlement to gratuity despite summary dismissal

Holding

Clause 31 of the CBA does not exclude summarily dismissed employees; gratuity payable at 16 days' salary per complete year for 25 years

Reasoning

Neither clause 31 of the CBA nor clause 24(b) excludes employees summarily dismissed for lawful cause. Section 18(4) of the Employment Act requires payment of all benefits due up to dismissal. NSSA/NSSF subscription does not displace the freely negotiated CBA benefit.

p. 3
04

Annual leave pay for 2012

Holding

Allowed at Kshs. 19,912; Respondent produced no evidence leave was taken or paid

Reasoning

Pay slips for 2012 showed zero leave encashment and the Respondent provided no documents showing payment. Clause 17 of the CBA entitled the Claimant to 26 working days' annual leave with full pay.

p. 3
05

Certificate of Service declaration

Holding

Refused; the remedy lies in an order for release under Section 51(1) and (2) or a criminal complaint under Section 51(3)

Reasoning

The Court declined to re-declare what Section 51(3) already declares. The proper course is to seek release of the certificate or report to Police or a Labour Officer for prosecution.

p. 3

Legal principles established

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  • Once an employee concedes wrongdoing, complaints about lack of valid reason or unfair procedure in termination are of academic value only
  • Contractual benefits under a CBA are given in addition to statutory benefits, and gratuity under a CBA is not excluded by summary dismissal unless expressly excluded
  • A disciplinary hearing is unnecessary where the employee has admitted the charge

Court orders

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  1. 1.Declaration that termination of the Claimant's contract of employment was fair
  2. 2.Respondent to pay the Claimant annual leave pay of Kshs. 19,912 and gratuity of Kshs. 306,338, totalling Kshs. 326,250
  3. 3.Interest granted at 14% per annum from the date of termination, 18th June 2012
  4. 4.No order on the costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment claim)

Relief refused

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1 month salary in lieu of notice (Kshs. 19,912)

Termination was substantively and procedurally fair; summary dismissal disentitles the Claimant to notice pay

p. 3

12 months' salary compensation for unfair termination (Kshs. 238,944)

Termination was fair both substantively and procedurally

p. 3

Declaration that failure to issue Certificate of Service attracts penal consequences under Section 51 of the Employment Act

The statute already declares the consequence; no utility in the Court re-declaring it

p. 3

Declaration that termination was unfair, unjust and unconstitutional

Court found termination fair

p. 3

Costs

No order on the costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Termination was therefore substantively and procedurally fair.
p. 3substantive and procedural fairness of dismissal
Once an Employee has conceded to wrongdoing, latter-day complaints about lack of valid reason and fairness of procedure, in the process of termination, can only be of academic value.
p. 3effect of admission of wrongdoing
Clause 31 above does not exclude Employees who are summarily dismissed. There is no exclusion under clause 24 [b] on summary dismissal either.
p. 3gratuity entitlement despite summary dismissal
Contractual employment benefits are given in addition to statutory benefits, not less statutory benefits.
p. 3CBA benefits supplement statutory benefits
The Respondent shall pay to the Claimant: annual leave pay at Kshs. 19,912 and gratuity at Kshs. 306,338- total Kshs. 326,250.
p. 4final orders
Interest granted at 14% per annum from the date of termination, 18th June 2012.
p. 4final orders - interest
No order on the costs.
p. 4final orders - costs

Issues in the judgment

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minor

Judgment inconsistently dates the Claimant's suspension (9th June 2012 in the dismissal letter and Respondent's pleading; 12th June 2012 in Claimant's cross-examination; same date as incident on 9th June 2012 in the Court's findings)

minor

The Respondent is referred to inconsistently in the judgment as Steel Scrap Metal Limited (Claimant's employment letter), Steel Makers Limited (in the Court's gratuity reasoning) and unnamed in the heading

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Said Ndege v Steel Makers Limited [2018] KEELRC 303 (KLR)", Case Analysis (2018). ELRC Cause (Mombasa) - Statement of Claim filed 13th June 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/303/eng@2018-12-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.