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ELRCDismissedEmployment and Labour Relations Cause (number not stated in judgment)

Ngeno v Unga Limited & another (Cause 189 of 2016) [2020] KEELRC 25 (KLR)

Employment and Labour Relations Court of Kenya
17 December 2020
3,679 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a summary dismissal where an employee refused to return a company vehicle, confirming employees must prove unfair dismissal claims.

What this practically means

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Executive summary

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The claimant, employed by the respondents (sister companies) since 25th June 1985 and rising to Buying Centre Supervisor, was summarily dismissed on 24/25 June 2015 for gross misconduct - unlawful retention of a company vehicle from 11th September 2014 to 19th December 2014 and disobedience of lawful instructions from his supervisor to return it. He claimed the real reason was redundancy following closure of the buying centre, and sought declarations of unfair dismissal and breach of the right to housing, terminal dues, compensatory damages, a certificate of service, costs and interest. The respondents maintained the dismissal was for a valid and fair reason conducted through a fair procedure. The court framed two issues: whether the dismissal was unfair and unlawful, and whether the claimant was entitled to the reliefs sought. It held that the respondents proved a valid and fair reason under sections 44(4) and 45(2) of the Employment Act, a reasonable employer dismissing an employee for misuse of company property and deliberate disobedience of lawful instructions. On procedure, the claimant was served show cause notices, heard by a disciplinary committee, signed the minutes, and the decision was communicated; section 41 was satisfied, and the claimant failed to discharge his burden under section 47(5). The redundancy claim was rejected. The suit was dismissed except for the certificate of service under section 51, with each party bearing own costs.

Questions the Court framed

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

  1. 1.Whether the dismissal was unfair and unlawful.
  2. 2.Whether the claimant is entitled to the relief sought.

Key legal issues

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01

Validity of the reason for dismissal

Holding

The reason (unlawful retention of company vehicle and disobedience of lawful instructions) was valid and fair under sections 44(4) and 45(2) of the Employment Act, amounting to gross misconduct.

Reasoning

The court found the claimant retained the company vehicle from 10 September 2014 to 19 December 2014 despite a lawful instruction of 22 October 2014 and a second instruction of 18 December 2014. Misuse of company property and deliberate disobedience of lawful instructions are grounds a reasonable employer would treat as gross misconduct warranting summary dismissal under section 44.

p. 4
02

Fairness of procedure under section 41

Holding

The procedure was fair: the claimant was served with show cause notices, invited to a disciplinary hearing with a right to be accompanied, attended, gave his defence, signed the minutes, and the decision was communicated.

Reasoning

The claimant admitted being notified of the allegations, attending the hearing on 13 January 2015, airing his defence, correcting and signing the minutes. Although the decision came four months later, the court was satisfied that section 41 requirements of explanation, hearing and consideration of representations were met, and the claimant failed to prove unfair dismissal.

p. 5
03

Claimed redundancy as the real reason

Holding

Rejected: the buying centre reopened seasonally, the position was filled by another employee, and the position did not become superfluous.

Reasoning

RW1 testified that buying centres for maize and wheat operate seasonally and continued after the claimant's dismissal; his position was occupied by Mr. Justus Musangi, and the redundancy of a colleague, Mr. Oloo, arose in different circumstances. The claimant's assertion that the dismissal masked redundancy was therefore not proved.

p. 2

Legal principles established

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  • An employer may summarily dismiss an employee who knowingly disobeys a lawful command issued by a person in authority over him.
  • The burden of proving unfair termination lies on the employee under section 47(5) of the Employment Act.

Court orders

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  1. 1.The suit is dismissed save that the respondents are directed to issue the claimant with a certificate of service under Section 51 of the Employment Act.
  2. 2.Each party to bear own 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 (Court Art. 162(2) not expressly quoted; suit founded on the Employment Act, ss. 41, 44, 45, 47(5) and 51)

Relief refused

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Declaration that a redundancy situation existed and declaration that dismissal was unfair

The dismissal was for a valid and fair reason and followed a fair procedure; the claimant did not lose employment on account of redundancy.

p. 5

Compensatory damages for unfair dismissal and salary in lieu of notice

No unfair dismissal established; dismissal was summary dismissal for misconduct, not redundancy.

p. 5

Severance pay

No redundancy; employment lost through summary dismissal for misconduct.

p. 5

Accrued house allowance

Salary was consolidated from 2003.

p. 5

Pension contribution claim and 8/9 days accrued leave claim

Leave days were paid with terminal dues; pension claim lacked particulars and evidence.

p. 5

Costs

Each party to bear own 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.

I have found that the claimant has not proved on a balance of probability that his dismissal was unfair, but the respondent has proved by evidence that the dismissal was grounded on a valid and fair reasons and that it was done in accordance with a fair procedure as required by Section 45 of the Employment Act.
p. 5Standard and outcome on unfair termination
Consequently, the suit is dismissed save that the respondents are directed to issue the claimant with a certificate of service under Section 51 of the Employment Act. Each party to bear own costs.
p. 5Final orders and costs
In my considered view, a reasonable employer in the ircumstances where there is misuse of Company property and deliberate disobedience of lawful instructions, would dismiss the claimant.
p. 4Reasonable employer test on gross misconduct

Issues in the judgment

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minor

The judgment inconsistently states the date of the claimant's dismissal, at one point 25th June 2015 and elsewhere a dismissal letter dated 24th June 2015 with employment ending 24th June 2015.

minor

The judgment inconsistently spells the buying centre as 'Nanok' and 'Narok'.

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, "Ngeno v Unga Limited & another (Cause 189 of 2016) [2020] KEELRC 25 (KLR)", Case Analysis (2020). Employment and Labour Relations Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/25/eng@2020-12-17

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