Social Service League Mp Shah Hospital v Judith Apudo
The bottom line
#Kenya's Court of Appeal confirmed a hospital's dismissal of a nurse was unfair because it couldn't prove its reasons, but cut her compensation from twelve months' salary to three.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer proved valid reasons for summary dismissal
The appellant did not prove the reasons for dismissal; the unsigned statement of the alleged victim was discounted and the dismissal was therefore unjustified.
The onus lay on the employer to prove on a balance of probabilities that the employee assaulted the senior manager and damaged property. Its only witness did not witness the incident and relied solely on an unsigned statement. Under section 43(2) of the Employment Act the employer had to prove the matters it genuinely believed to exist; failure to do so rendered the termination unfair under section 45.
Whether the employee was denied a fair hearing
The employer afforded adequate opportunity to be heard; the employee thwarted the hearings by bringing strangers and refusing to attend, so no denial of fair hearing occurred.
The employer invited the employee in writing, spelt out the allegations, informed her of her right under section 42(1) to be accompanied by a fellow employee or union representative, and granted her ten days off to prepare. She attended with strangers, sought adjournments, and ultimately failed to attend, making it impossible for herself to be heard. No court should condone or reward such mischief.
Whether the trial court's award of maximum 12 months' compensation was justified
The award was set aside because the trial judge failed to consider the section 49(4) factors, including the employee's conduct and contribution to the termination; three months' compensation was substituted.
Section 49(1)(c) caps compensation at 12 months' salary, but section 49(4) obliges the court to consider circumstances of termination, the employee's contribution and conduct, length of service and comparable employment opportunities. The trial judge considered none of these and awarded the maximum, ignoring the respondent's misconduct, warranting appellate interference with the discretion.
Legal principles established
#- An employer bears the burden of proving the valid reasons for summary dismissal; failure to prove those reasons automatically renders the termination unfair.
- Section 42(1) of the Employment Act entitles an employee facing disciplinary proceedings to be accompanied only by another employee or a shop floor union representative of their choice, not any other person.
- An employee who thwarts or fails to attend a properly convened disciplinary hearing cannot later claim denial of a fair hearing.
- In awarding compensation under section 49 of the Employment Act, a court must consider the statutory factors in section 49(4), including the employee's contribution to the termination; failure to do so warrants appellate interference.
Court orders
#- 1.Appeal allowed in part
- 2.Set aside the award of 12 months compensation and substituted therefor an award of three months compensation (Kshs. 174,300)
- 3.The rest of the award of the trial court to remain undisturbed
- 4.Appellant awarded half the costs of this appeal
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRCC No. 13 of 2014
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court (Employment and Labour Relations Court Act jurisdiction); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Social Service League Mp Shah Hospital v Judith Apudo", Case Analysis (2021). Civil Appeal No. 109 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/963/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.