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ELRCDismissedCause No 1627 of 2018· [2023] KEELRC 2529 (KLR)

Muthinzi v Windsor Golf Hotel & Country Club (Cause 1627 of 2018) [2023] KEELRC 2529 (KLR)

Employment and Labour Relations Court
19 October 2023
2,760 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a security guard's summary dismissal for leaking confidential board documents, confirming that gross misconduct plus a fair hearing defeats unfair termination claims.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a security guard from 2006, was summarily dismissed on 4th October 2018 after he was found, on CCTV footage, to have removed confidential board minutes left in a boardroom after a 16th August 2018 meeting and shared them with a colleague. He sued for compensation for wrongful termination, three months' salary in lieu of notice, unpaid leave, service pay, extra medical expenses for work-related ailments, and general damages, alleging the dismissal was unlawful, unprocedural and conducted through a sham process without a fair hearing or appellate forum. The respondent maintained the dismissal complied with the Employee Manual, the applicable CBA and sections 41 and 44 of the Employment Act: the claimant was suspended with full pay, issued a notice to show cause, responded to it, attended a disciplinary hearing accompanied by a colleague, and was dismissed with reasons stated; he appealed unsuccessfully. The court framed two issues: whether the dismissal was for a fair reason and procedural, and whether the claimant was entitled to the reliefs sought. Applying the reasonable employer test and the two-limb test of substantive justification and procedural fairness, the court found the claimant committed gross misconduct under section 44(4) of the Employment Act by disclosing a confidential document to an unauthorised colleague, and that the section 41 procedure was fully complied with. The claim was found without merit and dismissed with costs; all reliefs were refused.

Key legal issues

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01

Whether the dismissal was for a fair reason

Holding

Yes - the claimant's unauthorised disclosure of a confidential board document to a colleague amounted to gross misconduct under section 44(4) of the Employment Act, justifying summary dismissal.

Reasoning

The court applied the reasonable employer test. The claimant admitted taking the confidential document and showing it to colleague Kirui, who was not authorised to see it, contrary to his letter of appointment. He conceded he should have taken the document to his boss, the chief security officer. Such conduct constituted gross misconduct, a valid reason for summary dismissal, and the court would not interfere.

p. 5
02

Whether the dismissal procedure was fair

Holding

Yes - the respondent complied with section 41 of the Employment Act.

Reasoning

The claimant was issued a notice to show cause, responded to it, attended a disciplinary hearing accompanied by a fellow employee of his choice, made representations, and was dismissed with reasons articulated. He also appealed, though unsuccessfully. The court held this satisfied the procedural requirements of section 41 of the Employment Act and rejected the claimant's characterisation of the process as a sham.

p. 6
03

Whether the claimant is entitled to the reliefs sought

Holding

No - the claim having failed on both substantive and procedural fairness, all reliefs were refused and the suit dismissed with costs.

Reasoning

Since the court found valid reasons for the termination and a fair procedure, the claimant was not deserving of compensation, notice pay, leave pay, service pay, medical expenses or general damages. The claim was found without merit and dismissed with costs.

p. 6

Legal principles established

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  • For a termination to pass the fairness test it must be both substantively justified and procedurally fair
  • Gross misconduct under section 44(4) of the Employment Act is a valid reason for summary dismissal

Court orders

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  1. 1.The claim is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Employment Actsections 41, 43(2), 44, 44(4), 49
  • Employment and Labour Relations Court Actsection 12(4)
  • Work Injury Benefits Act (WIBA)referred to generally

Cases cited (10)

  • Thomas Sila Nzivo v Bamburi Cement Limited
    (2014) eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    (2021) eKLR
  • Postal Cooperation of Kenya vs Andrew K. Tanui
    (2019) eKLR
  • George Onyango Akuti v G4S Security Kenya Ltd
    (2013) eKLR
  • National Bank of Kenya vs Samuel Nguru Mutonya
    (2019) eKLR
  • Gitahi Z & 2 others Kenya Revenue Authority v Reuwel Waithaka
    (2019) eKLR
  • Silvester Malei Kyengo v Kenya Meat Commission
    (2019) eKLR
  • Kenya Power & Lighting Company Limited vs Agrey Lukorito Wasike
    (2017) eKLR
  • Brian Asin & 2 others v Wafula W. Chebulati and 9 others
    (2017) eKLR
  • Walter Ogal Anuro -vs- Teachers Service Commission
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act; Employment and Labour Relations Court Act, 2011)

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, "Muthinzi v Windsor Golf Hotel & Country Club (Cause 1627 of 2018) [2023] KEELRC 2529 (KLR)", Case Analysis (2023). Cause No 1627 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2529/eng@2023-10-19

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