Simon Karuga Waweru v Twiga Stationers Limited [ (Cause 2150 of 2014) (Employment and Labour) [2019] KEELRC 1773 (KLR)
The bottom line
#A Kenyan court upheld a dismissal where the employee admitted absconding in writing and had signed a voucher releasing the employer from all claims.
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 termination was unfair
- 2.Whether the reliefs sought should be granted
Key legal issues
#Whether the respondent proved a valid and fair reason for the termination
Yes. The claimant admitted absenting himself from work on 9.6.2014 after lunch and failing to report back until the following day, which constitutes gross misconduct under section 44(4)(a) of the Employment Act and clause 11(b) of the CBA.
The reason cited for termination was absence from work without permission. The claimant admitted in his response to the show cause letter and in his evidence that he absented himself on 9.6.2014 after lunch and never returned that day despite promising to do so. The court therefore found the employer had discharged the burden on a balance of probability, satisfying both the statute and the CBA.
Whether a fair procedure under section 41 of the Employment Act was followed
Yes. The claimant was served with a show cause memo which he answered admitting the misconduct; the admission rendered any further oral hearing superfluous.
Section 41 requires an employer to explain the reasons and hear the employee's representations before termination on grounds of misconduct. The claimant was charged by internal memo and responded in writing admitting the absence. Relying on the court's previous decisions, the judge held that an unequivocal written admission of the misconduct in response to a show cause letter removes the need for an oral hearing.
Whether the claimant was entitled to terminal dues and compensation despite having signed a discharge voucher
No. Having accepted the computed dues and signed a voucher discharging the employer, and having pleaded no vitiating factor, the claimant could not recover further benefits.
The claimant received terminal dues totalling Kshs.92,103.75 and signed a discharge. He neither pleaded nor adduced evidence of duress, fraud or any other factor vitiating the discharge. Following the Court of Appeal's decision in Thomas De La Rue (K) Ltd v David Opondo Omutelama, the discharge was binding and defeated the claim for further benefits.
Legal principles established
#- Under section 45 of the Employment Act, termination of employment is unfair if the employer fails to prove a valid and fair reason and that a fair procedure was followed.
- Where an employee admits misconduct in a response to a show cause letter, the employer is not bound to conduct any further oral disciplinary hearing under section 41 of the Employment Act.
- A signed voucher discharging an employer from further claims binds the employee unless the employee pleads and proves a factor vitiating the contract.
Court orders
#- 1.Dismissal of the prayer for compensation for unlawful termination
- 2.Dismissal of the claim for accrued terminal dues for want of particulars and evidence
- 3.Dismissal of the suit with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (suit for unfair and unlawful termination of employment)
Relief refused
#Compensation for illegal and unlawful termination of employment
The termination was found substantively and procedurally fair; there was a valid and fair reason and no oral hearing was required after the claimant admitted the misconduct.
All terminal dues accrued
The claim failed for want of particulars and evidence, and the claimant had signed a voucher discharging the employer from any further claims without pleading or proving any vitiating factor.
Costs
No order as to costs - the suit was dismissed with no order as to costs
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.
I therefore find that the respondent has proved on a balance of probability that there was a valid and fair reason for dismissing the claimant both under section 44(4) (a) of the Employment Act and clause 11(b) of the CBA.
whenever an employee admits misconduct in a response to a show cause letter, the employer is not bound to conduct any further disciplinary hearing
In view of the finding herein above that the respondent has proved a valid and fair reason for dismissing the claimant’s employment and that there was no need of conducting an oral hearing under section 41 of the Act after the admission of the misconduct by the claimant vide his letter dated 10.6.2014, I return that the termination of the claimant’s services was fair and lawful.
He did not plead or adduce any evidence to prove that the said discharge was signed under any of the factors that vitiates a contract between parties.
I have found that the termination of the claimant’s employment was substantively and procedurally fair and dismiss the suit with no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Karuga Waweru v Twiga Stationers Limited [ (Cause 2150 of 2014) (Employment and Labour) [2019] KEELRC 1773 (KLR)", Case Analysis (2019). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1773/eng@2019-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.