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ELRCPartially AllowedCause 341 of 2010· [2012] KEELRC 22 (KLR)

KILIOPA OMUKUBA OKUTOYI V TELKOM KENYA LIMITED [2012] KEELRC 22 (KLR)

Industrial Court of Kenya
12 October 2012
MMM. W. Mbaru
1,871 words in judgment
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The bottom line

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A Kenyan court ruled Telkom Kenya wrongfully dismissed an employee by never holding a proper hearing, and ordered payment of his dues and costs.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 13th April 1993 as a trainee technician and later confirmed as a technician on permanent and pensionable terms, was dismissed following an arson attack at the respondent's Kisumu Toll switch in November 2008. He was arrested, suspended indefinitely on 25th November 2008, asked to respond in writing to the arson allegations on 14th January 2009, and dismissed by letter dated 22nd January 2009; his appeal was by written submissions and was dismissed on 27th February 2009. The claimant sought a declaration that the dismissal was unfair and unlawful, general damages, terminal dues and special damages. The respondent defended the dismissal as lawful summary dismissal under section 44 of the Employment Act and in accordance with its human resource policy manual. The court framed four issues: breach of natural justice, breach of disciplinary procedures, entitlement to declarations and orders, and special damages. It held that section 41 of the Employment Act requires an actual hearing with an accompanying representative and that a written response did not meet that threshold, nor the policy manual's requirement of a personal appearance before an appeal committee. Due process was found not to have been followed and the procedure was wrong and unlawful; circulating a dismissal memo office-wide before serving the claimant was condemned as inhuman and degrading. However, the court found the burden of proving unfair termination not discharged to the required standard and declined to award general or special damages. Judgment was entered for the claimant for one month's salary in lieu of notice (Kshs. 42,277.00), half salary for three months on suspension (Kshs. 63,000.00) and severance pay for 15 years (Kshs. 317,076.00), totalling Kshs. 422,353.00, plus costs of the suit.

Key legal issues

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01

Whether the summary dismissal complied with section 41 of the Employment Act and the respondent's HR policy manual

Holding

The dismissal was procedurally flawed; written submissions did not amount to the hearing required by section 41 or the policy manual, and the dismissal was wrong and unlawful.

Reasoning

Section 41 requires the employer to explain reasons to the employee in a language he understands and to hear and consider representations made by the employee and a person of his choice. The claimant was only given written exchanges and an appeal by written submissions, contrary to the policy manual's requirement that an appealing employee appear in person before a committee. Circulating a memo before serving the dismissal letter was also found inhuman and degrading.

p. 3
02

Whether the claimant proved unfair termination and entitlement to special damages

Holding

The court declined to make a finding of unfair termination on the merits or award general/special damages, holding the burden of proof was not discharged.

Reasoning

Although the procedure was flawed, the court noted that investigations into the arson remained with the police and that no good grounds for unfair termination were advanced. The burden of proving unfair termination rested on the claimant and was not discharged to the required standard, so no award was made on that head.

p. 3

Legal principles established

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  • A summary dismissal should be a last resort, reserved for the rarest of cases where an employee has fundamentally breached his obligations under a contract of service.
  • Under section 41 of the Employment Act, a written response to a show-cause letter does not satisfy the statutory requirement of a hearing with a representative present; the employee must be heard in person with an opportunity to be accompanied.

Court orders

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  1. 1.1 month salary in lieu of notice at Kshs. 42,277.00
  2. 2.Half salary unpaid for 3 months while on suspension at Kshs. 63,000.00
  3. 3.Severance pay for 15 years worked at Kshs. 317,076.00
  4. 4.Costs of the suit

Authorities

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Legislation

  • Employment ActSection 41 (and 41(1))
  • Employment ActSection 44 (44(3), 44(4))
  • Constitution of KenyaArticle 22(3)(d)
Jurisdiction invoked
Employment Act, Industrial Court cause (dispute over unfair and unlawful dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "KILIOPA OMUKUBA OKUTOYI V TELKOM KENYA LIMITED [2012] KEELRC 22 (KLR)", Case Analysis (2012). Cause 341 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/22/eng@2012-10-12

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