The Employment and Labour Relations Court in Nairobi has ruled that an employer may dismiss a worker over misconduct but must still comply with the law during the termination process.

🇰🇪 Breaking It Down

Court documents obtained by this publication revealed that the case stemmed from a dispute involving a Kasarani Stadium security guard who was dismissed after being accused of participating in an unprotected strike in May 2021, during which the facility's gates were allegedly locked, restricting entry and exit.

Justice D. K. Njagi Marete ruled that the company failed to meet the requirement of fairness before dismissing him.

“This court accordingly finds that the Appellant’s termination, though substantively justified, was procedurally unfair for want of compliance with Section 41(1) of the Employment Act, 2007,” the document stated.

📌 What You Need to Know

The court noted that the guard had been summoned by phone call and instructed to write an apology, but was not formally informed of the allegations against him or given an opportunity to respond in the presence of a representative.

The judge held that the process did not satisfy the Employment Act, which requires an employee facing termination for misconduct to be heard before a decision is made.

Consequently, the guard was awarded Ksh34,826.48 for the procedural breach and Ksh 129,198.63 for wage underpayments as he had been earning Ksh9,000 a month, all including interest.

Further, the employer was ordered to issue him with a Certificate of Service within 30 days.

Although the dismissal was declared procedurally unfair, the court still found that the guard’s participation in the unprotected industrial action provided a valid and substantive reason for the employer to terminate his employment.

Under the Labour Relations Act, a strike is considered unprotected if the required seven days’ written notice has not been issued to the employer and the relevant government officials, or if the action violates an existing court order or valid collective agreement.

📰 Source: Kenyans.co.ke