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ELRCPartially AllowedCause No. 2106 of 2011· [2013] KEELRC 139 (KLR)

Jane Juma Aloo v Hon The Attorney General [2013] KEELRC 139 (KLR)

Industrial Court of Kenya
18 September 2013
MMM. Mbaru
3,950 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the Public Service Commission in 1984 and seconded to the Ministry of Foreign Affairs as support staff, was dismissed with loss of benefits following the non-delivery of confidential letters entrusted to her on 21st January 2009. She claimed unfair termination, seeking service gratuity of Kshs.400,752.00 and lost future earnings of Kshs.2,604,888.00. The respondent maintained that the claimant was lawfully dismissed for gross misconduct after due process, including a show cause letter, a ministerial human resource committee hearing, and an unsuccessful appeal. The court framed three issues: gross misconduct, fairness of termination, and remedies. On the evidence, the delivery book omitted the messenger's name and no evidence showed the claimant was duty-bound to record it. Crucially, Moses Ingosi, the cleaner allegedly given letters for delivery, was never called as a witness, which the court found a missing link, and the burden of proving gross misconduct under section 44(4)(c) lay on the employer. The court held the dismissal was not justified and was unfair under section 43(1). Reinstatement was declined as impractical; notice pay was awarded under section 35(1)(c); service pay was declined because NSSF and NHIF dues had been remitted; and lost future earnings failed for want of mitigation, with the maximum 12 months' compensation of Kshs.200,376.00 awarded instead. Judgment was entered for the claimant with costs against the respondent.

Key legal issues

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01

Whether the claimant engaged in gross misconduct justifying summary dismissal

Holding

The respondent failed to prove gross misconduct; the summary dismissal was not justified

Reasoning

The delivery book did not record the messenger's name, and no evidence established that recording it was the claimant's duty. The claimant contested authorship of the apology letter, yet the employer did not call Moses Ingosi, the cleaner allegedly asked to deliver the letters, despite the security officer's investigation. The respondent failed to produce reports showing culpability, so the alleged reasons for dismissal were not proved.

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02

Whether the termination was fair or unfair

Holding

The termination was unfair under section 43(1) of the Employment Act and not a proper case for summary dismissal under section 41

Reasoning

Having failed to prove the reason for the summary dismissal, the respondent could not justify the dismissal. The court found that the claimant was not vested with the duty to ensure the delivery book was properly recorded and did not involve herself in the loss of the letters. Section 41 would suffice, entitling the claimant to notification, making the summary dismissal invariably unfair.

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03

Whether the claimant is entitled to the remedies prayed for

Holding

Reinstatement declined; notice pay awarded; service pay declined; maximum 12 months' compensation awarded instead of lost future earnings

Reasoning

Reinstatement was impractical five years after termination. Notice pay under section 35(1)(c) applied since this was not a proper case for summary dismissal. Service pay was ineligible due to remitted NSSF and NHIF dues. Future earnings failed for lack of mitigation evidence, but her 24 years of unblemished service justified the maximum 12 months' compensation at Kshs.16,698.00 per month.

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Legal principles established

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  • Where an employee disputes gross misconduct under section 44(4)(c) of the Employment Act, the burden of proving the acts of omission lies on the employer alleging them
  • Where a key witness to the alleged misconduct (Moses Ingosi) is not called by the employer, an adverse inference may be drawn against the employer
  • The reasons for termination are the matters the employer genuinely believed to exist at the time of termination under section 43(2) of the Employment Act, and failure to prove them renders the termination unfair

Court orders

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  1. 1.A declaration that the summary dismissal of employment of the claimant was unfair
  2. 2.Compensation for unfair termination amounting to Kshs.200,376.00 (12 months' pay at Kshs.16,698.00)
  3. 3.Notice pay at Kshs.16,698.00
  4. 4.Respondent to pay costs of the cause

Authorities

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Legislation

  • Employment Actsection 44(3)
  • Employment Actsection 44(4)(c)
  • Employment Actsection 43(1)
  • Employment Actsection 43(2)
  • Employment Actsection 41
  • Employment Actsection 35(1)(c)
  • Employment Actsection 35
Jurisdiction invoked
Industrial Court jurisdiction over employment and labour relations disputes (claim of unlawful termination of employment filed under Cause No. 2106 of 2011)

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, "Jane Juma Aloo v Hon The Attorney General [2013] KEELRC 139 (KLR)", Case Analysis (2013). Cause No. 2106 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/139/eng@2013-09-18

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