MR. MAGOA ANDREW MOIRORE V KENYA BUREAU OF STANDARDS [2012] KEELRC 118 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity and proof of the reason for termination
Termination was unfair; the respondent failed to prove the misconduct alleged
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.
Due process in the disciplinary proceedings
The process breached due process and was unfair and unconstitutional
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.
Remedies: compensation, notice pay, leave pay, suspension pay and counterclaim
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
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.
Legal principles established
#- 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
#- 1.Judgment entered for the claimant against the respondent for Ksh.709,313.50
- 2.Interest on the award at court rates till full payment
- 3.The respondent to pay 75% of the costs of the cause
- 4.Counterclaim of Ksh.30,283.10 deducted from the claimant's dues
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.