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ELRCPartially AllowedIndustrial Court Cause (Nairobi), memorandum of claim filed 1st March 2012· [2012] KEELRC 118 (KLR)

MR. MAGOA ANDREW MOIRORE V KENYA BUREAU OF STANDARDS [2012] KEELRC 118 (KLR)

Industrial Court of Kenya
16 November 2012
2,833 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who could not prove its reason for dismissing an employee was ordered to pay over Ksh.700,000.

What this practically means

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Executive summary

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The claimant, an Assistant Technician at the Kenya Bureau of Standards deployed at the Port of Mombasa, was dismissed on 16th September 2011 after a disciplinary committee found he had irregularly released goods belonging to Retreat Freight Forwarders Ltd without collection of KEBS penalties, based on a release stamp and signature attributed to him. He denied the signature, alleging forgery, and raised procedural objections: only seven days to respond contrary to the ten working days required by policy, the show cause letter issued by a deputy rather than the Managing Director, and that officer's participation in the committee as accuser, prosecutor and judge. The court held the respondent failed to prove the reasons for termination because the audit or investigation report was not produced and no expert evidence addressed the forgery allegation, rendering the termination unfair under Section 43 of the Employment Act, 2007. The unaddressed procedural complaints amounted to unfair labour practice and a breach of due process, offending Articles 41 and 236(b) of the Constitution. The court awarded twelve months' gross salary (Ksh.529,152), one month's notice pay (Ksh.22,746), untaken leave pay (Ksh.36,741.60) and pay for the four months of suspension (Ksh.150,984), but refused severance as there was no redundancy. The respondent's counterclaim of Ksh.30,283.10 for an unrecovered laptop surcharge was proved and deducted. Judgment was entered for the claimant for Ksh.709,313.50 with interest, and the respondent to pay 75% of the costs.

Key legal issues

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01

Validity and proof of the reason for termination

Holding

Termination was unfair; the respondent failed to prove the misconduct alleged

Reasoning

The audit or investigation report attributing release of goods to the claimant was not produced in court, and no expert evidence addressed his forgery claim. A disciplinary committee sitting without expert assistance lacked competence to resolve the allegations, so at dismissal the respondent had no genuine grounds to believe misconduct had occurred. The respondent should have pursued a criminal complaint if suspicion existed.

p. 4
02

Due process in the disciplinary proceedings

Holding

The process breached due process and was unfair and unconstitutional

Reasoning

The claimant raised specific procedural objections - short notice of seven rather than ten working days, show cause letter not from the Managing Director, and the officer who issued the letter sitting as accuser, prosecutor and judge. None was addressed, the appeal was not determined, and the human resource manual was not produced. As a public officer he was protected by Article 236(b) of the Constitution.

p. 5
03

Remedies: compensation, notice pay, leave pay, suspension pay and counterclaim

Holding

Twelve months' gross salary (Ksh.529,152), one month's notice (Ksh.22,746), untaken leave (Ksh.36,741.60) and four months' suspension pay (Ksh.150,984) awarded; Ksh.30,283.10 counterclaim deducted

Reasoning

Having served three complete years, the claimant was entitled to one month's notice under Section 35(1)(c) and payment for untaken leave. Because the dismissal was unfair, the four months of unpaid suspension were attributable to the respondent. Severance was refused as there was no redundancy. The admitted laptop surcharge was deducted from the total.

p. 5

Legal principles established

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  • An employer bears the burden of proving that the reasons for termination existed, failing which termination is unfair under Section 43 of the Employment Act.
  • It is an unfair labour practice for an employer to fail to address alleged procedural impropriety raised by an employee in a disciplinary process.
  • Whether an employee on suspension or interdiction is paid for that period depends on the outcome of the disciplinary proceedings.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for Ksh.709,313.50
  2. 2.Interest on the award at court rates till full payment
  3. 3.The respondent to pay 75% of the costs of the cause
  4. 4.Counterclaim of Ksh.30,283.10 deducted from the claimant's dues

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(g)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 35(1)(c)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 236(b)

Cases cited (1)

  • Grace Gacheri Muriithi Vs Kenya Literature Bureau
    Industrial Court Cause No. 44 of 2011 at Nairobi
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution

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, "MR. MAGOA ANDREW MOIRORE V KENYA BUREAU OF STANDARDS [2012] KEELRC 118 (KLR)", Case Analysis (2012). Industrial Court Cause (Nairobi), memorandum of claim filed 1st March 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/118/eng@2012-11-16

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