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ELRCPartially AllowedCause 771 of 2012· [2013] KEELRC 309 (KLR)

NAZARENO KARIUKI V FEED THE CHILDREN KENYA [2013] KEELRC 309 (KLR)

Industrial Court of Kenya
8 May 2013
LNLINNET NDOLO
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cut a dismissed executive's payout because his boss had good reasons to fire him but botched the disciplinary process.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 12th March 2007 and serving as Deputy Country Director/Program Manager on a fixed term contract running to 30th November 2012, was summarily dismissed on 28th February 2012. He claimed wrongful and unfair termination, seeking a declaration, reinstatement or alternatively salary for the unexpired term of the contract, pay in lieu of notice, costs and interest. The Respondent defended the dismissal, alleging that the Claimant engaged in unprofessional, hostile and disrespectful email exchanges with the Operations Manager, Jesse Olukutukei, disrupting operations and damaging the organisation's reputation, and that the disciplinary procedure complied with the law and its HR policies. The court found that under Section 43(1) of the Employment Act the employer bore the burden of proving reasons for termination, and applying the range of reasonable responses test, the Respondent had substantive justification: the Claimant, a senior officer expected to display high civility and decorum, engaged in sustained divisive and disruptive conduct that breached the mutual trust underpinning employment. However, on procedure, the court found the Respondent's process oscillated between reconciliation and discipline without clearly notifying the Claimant that he faced a disciplinary process, in breach of the spirit of Section 41. The court accordingly converted the summary dismissal to a normal termination, awarding one month's salary in lieu of notice and salary for February 2012, totalling Kshs. 832,500, subject to statutory tax, with each party bearing its own costs. Reinstatement and the unexpired contract salary were refused.

Key legal issues

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01

Whether the Respondent had a justifiable reason to dismiss the Claimant

Holding

Yes - the sustained divisive and disruptive exchange of mail with the Operations Manager justified termination, especially given the Claimant's senior position

Reasoning

Section 43(1) places the burden on the employer to prove reasons for termination. Applying the range of reasonable responses test from Halsbury's Laws, the court finds the employer acted reasonably. The Claimant, as Deputy Country Director, was expected to show higher civility and decorum; his sustained hostile exchanges with a fellow senior officer soiled his hands and breached the mutual trust underlying the employment contract.

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02

Whether the Respondent followed fair procedure under Section 41 of the Employment Act

Holding

No - the process oscillated between reconciliation and discipline without clear notice that a disciplinary process had begun

Reasoning

Section 41 requires the employer to explain reasons and hear representations before termination. The Respondent's process was ambiguous, oscillating between reconciliation efforts and discipline, so the Claimant was shocked to receive a dismissal letter. Because procedural fairness was compromised despite substantive justification, the court converted the summary dismissal to normal termination and awarded notice pay.

p. 4

Legal principles established

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  • The employer bears the burden of proving reasons for termination; failure renders it unfair
  • The court applies the range of reasonable responses test and does not substitute its own view for the employer's
  • Higher standards of civility and decorum are expected from senior employees
  • An employer must clearly notify an employee that a process is disciplinary and not reconciliation

Court orders

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  1. 1.Conversion of the Claimant's summary dismissal to a normal termination
  2. 2.One month's salary in lieu of notice (Kshs. 416,250)
  3. 3.Salary for the month of February 2012 (Kshs. 416,250)
  4. 4.The Award amount to be subject to statutory tax
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 43(1) and (2)
  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 45

Cases cited (1)

  • Captain Kai Tinga Vs Jubba Airways
    Industrial Court Cause No 605 of 2011
Jurisdiction invoked
Industrial Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "NAZARENO KARIUKI V FEED THE CHILDREN KENYA [2013] KEELRC 309 (KLR)", Case Analysis (2013). Cause 771 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/309/eng@2013-05-08

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