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ELRCDismissedNot stated in the judgment as provided· [2020] KEELRC 79 (KLR)

Bernard Shem Koweru v United Millers Limited [2020] KEELRC 79 (KLR)

Employment and Labour Relations Court
17 December 2020
MNMATHEWS N. NDUMA
1,624 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld dismissal of a deaf employee who reported to work drunk, because the employer followed fair disciplinary procedure and the employee could not prove otherwise.

What this practically means

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Executive summary

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The claimant, a deaf and mute technician, sued the respondent seeking three months' salary in lieu of notice, compensation for unlawful and unfair termination, a Certificate of Service, costs and interest. He testified that he was falsely accused of drunkenness by colleagues, that his disability prevented him from understanding the disciplinary process, and that no interpreter was provided. The respondent's witness (R.W.1) testified that the claimant had a poor attendance record, prior verbal and written warnings for lateness and drunkenness, and reported to work drunk on 18th June 2015. A show cause letter dated 19th June 2015 and a notice to attend a disciplinary hearing were issued; the claimant did not respond and did not attend. R.W.1 conceded the claimant was deaf and dumb but said he read and wrote good English, and that terminal benefits of Kshs. 103,319.50 gross, comprising severance pay, leave pay and salary for days worked, together with a Certificate of Service, had been given. The court framed two issues: whether termination was for a valid reason following fair procedure, and whether the claimant was entitled to the reliefs. It found the claimant not honest and truthful, particularly on drunkenness and the need for an interpreter, and held the respondent proved a valid reason under Section 43(1) and (2) and a fair procedure under Sections 41, 44 and 45 of the Employment Act. The suit was dismissed for lack of merit, but, considering the claimant's disability and four years of service, each party was ordered to bear their own costs. Judgment was delivered online pursuant to COVID-19 directions.

Key legal issues

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01

Whether termination was for a valid reason following fair procedure

Holding

The termination was for a valid reason and followed a fair procedure; the claimant refused to respond to the show cause letter or attend the disciplinary hearing despite being able to read and understand the notices

Reasoning

R.W.1 demonstrated the claimant had prior warnings for coming to work drunk and being violent, and on the material date reported to work drunk. He declined to sign or respond to the show cause letter and did not attend the disciplinary hearing. The court found the claimant was not a truthful witness and did not need an interpreter since he reads and writes good English. Sections 43(1) and (2) and Sections 41, 44 and 45 were satisfied.

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02

Whether the claimant was entitled to the reliefs sought, including terminal benefits

Holding

None of the reliefs were available; terminal benefits and a Certificate of Service had already been issued

Reasoning

The payslip showed gross pay of Kshs. 103,319.50 comprising severance pay, payment in lieu of leave days and salary for days worked. R.W.1 proved the Certificate of Service was issued. Having failed to prove unfair termination, the claimant was not entitled to notice pay or compensation.

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Legal principles established

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  • An employer must demonstrate both a valid reason for termination and a fair procedure under Sections 41, 43, 44 and 45 of the Employment Act, 2007
  • A claimant bears the burden of proving the claim on a balance of probability

Court orders

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  1. 1.The entire suit is dismissed for lack of merit
  2. 2.Each party to pay their own costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44 and 45) over termination of employment claim

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, "Bernard Shem Koweru v United Millers Limited [2020] KEELRC 79 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/79/eng@2020-12-17

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