Gitonga v Unilever Kenya Limited (Cause 1326 of 2018) [2024] KEELRC 1315 (KLR)
The bottom line
#Kenya's Employment Court ruled Unilever's summary dismissals unfair because warnings and system fixes, not dismissal, should have punished the employees' lapses.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there existed valid and fair reasons to justify the summary dismissal of the claimants
- 2.Whether the procedure followed in dismissing the claimants was fair and lawful
- 3.Whether the claimants are entitled to the reliefs sought, including salaries and dues to retirement and damages for breach of constitutional rights
Key legal issues
#Whether there were valid reasons for the summary dismissal of the claimants
The respondent failed to prove valid reasons; the terminations were unfair. Both parties acknowledged a new billing system being piloted, there was an acknowledged password-sharing problem in the organisation, and the accused actions caused no financial loss.
The court undertook a merit review guided by sections 41, 43, 44, 45, 46 and 47 of the Employment Act, the Fair Administrative Action Act and Article 41. Applying the British Leyland v Swift reasonableness test and proportionality, it found the breaches known to the employer and remediable through systems audit and warnings, with no loss occasioned. The dismissals were therefore outside the band of reasonableness.
Whether the procedure followed was fair and lawful
The procedure was procedural and in accordance with the law - show cause letters, responses, disciplinary hearings with rights to witnesses and colleagues, and appeal rights were all followed.
The claimants were issued notices to show cause, responded, were notified of hearings in good time, attended hearings chaired by the Head of Security (Rohit not present), were allowed to defend themselves, and were informed of appeal rights. The allegation of bias from Rohit signing the show cause and dismissal letters did not vitiate the process, which the court found satisfied natural justice and section 41 of the Employment Act.
Whether the claimants were entitled to the reliefs sought
Partially. Compensation to retirement and constitutional damages were refused; notice pay and seven months' salary as compensation for unfair termination were awarded, tempered by the claimants' own fiduciary failures.
The residual-salary-to-retirement claim was untenable given the exit clause and uncertainty of working to retirement. Constitutional damages failed for lack of demonstrated egregious conduct. On the statutory maximum twelve months, the court awarded seven months because, despite gaps in the respondent's systems, the claimants had a fiduciary duty to adopt mitigation measures and reporting mechanisms and never demonstrated they did anything in that regard.
Legal principles established
#- The role of the court is not to over-interrogate an employer's decision to dismiss but to ensure valid reason and procedural fairness, undertaking a limited merit review.
- Reasons for termination need not be strictly proved but must be reasonable and proportional; proportionality of the disciplinary measure is part of the merit review.
- Where breaches are known to the employer and could be remedied by systems audit and punished by warnings, summary dismissal fails the reasonable employer test.
Court orders
#- 1.Award to Rachael Wachira: one month's salary in lieu of notice Kshs. 130,000 and seven months' salary as compensation for unfair termination Kshs. 910,000, total Kshs. 1,040,000, plus costs of the suit
- 2.Award to Reuben Gitonga: one month's salary in lieu of notice Kshs. 340,000 and seven months' salary as compensation for unfair termination Kshs. 2,380,000, total Kshs. 2,720,000, plus costs of the suit
- 3.The award shall be subject to taxes and statutory deductions but shall attract interest at court rates from the date of judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance jurisdiction of the Employment and Labour Relations Court over summary dismissal claims, guided by sections 41, 43, 44, 45, 46 and 47 of the Employment Act, the Fair Administrative Action Act and Article 41 of the Constitution
- Consolidated with
- Cause No. 1325 of 2018
Relief refused
#Salaries and dues for the remainder of the claimants' working life up to retirement (Kshs. 31,200,000 for the 1st Claimant; Kshs. 48,960,000 plus bonus of Kshs. 654,955 for the 2nd Claimant)
It was not guaranteed the claimants would have worked to retirement; their contracts had exit clauses and vagaries of life could end the contracts prematurely.
Damages for breach of rights under the Constitution (Article 41), sought at Kshs. 10,000,000 each
No egregious behaviour by the respondent was demonstrated beyond an ordinary termination process.
Costs
Costs of the suit awarded to each claimant
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.
The respondent therefore failed to prove that there existed a valid reason to justify the summary dismissal of the Claimants herein with the consequence that the Court finds and holds that the termination of their employment was unfair.
Regarding the procedure for termination, the Court is satisfied that the process was procedural and in accordance with the law.
Breaches if any by the claimants could have been adequately punished through warning letters and not summary dismissal.
Reason for termination of employment need not be strictly proved but must however be reasonable and proportional in the circumstances.
In conclusion the Court awards the claimants as follows:
This award shall be subject taxes and statutory deductions but shall attract interest at Court rates from date of judgment until payment in full.
Issues in the judgment
#The judgment nowhere states the claim number of the consolidated causes; only the consolidated companion (Cause No. 1325 of 2018) is named, leaving the lead cause number unrecorded.
Internal inconsistency on the 1st Claimant's disciplinary hearing date - the response pleads hearing on 17th January 2018 but minutes of 13th December 2017 are referenced, and hearing attendance is also stated as 13th December 2017.
The judgment does not expressly state the number of the lead cause in its title or heading; the case number cannot be confirmed from the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga v Unilever Kenya Limited (Cause 1326 of 2018) [2024] KEELRC 1315 (KLR)", Case Analysis (2024). Cause consolidated with Cause No. 1325 of 2018 (memoranda of claim dated 20th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1315/eng@2024-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.