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ELRCPartially AllowedCause 955 of 2011

WALTER OGAL ANURO V TEACHERS SERVICE COMMISSION [2013] KEELRC 386 (KLR)

Industrial Court of Kenya
2 May 2013
LNLinnet Ndolo
2,171 words in judgment
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The bottom line

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A Kenyan court found a teacher's dismissal had valid grounds but was still unfair because the employer botched the investigation, awarding him about Kshs. 501,174.

What this practically means

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Executive summary

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The Claimant, employed by the Teachers Service Commission from 1986 and rising to Technical Instructor, was summarily dismissed on 7 December 2010 after a disciplinary meeting found him guilty of colluding with one Walter Ondhowe alias Samwel Bradox, who had secured employment with the Respondent using the Claimant's KCE Certificate number 0171760. The impostor was later arrested, charged and convicted. The Claimant sought a declaration of unfair termination, reinstatement, 12 months' salary compensation, prorata leave, severance pay, notice pay and December salary. The Court framed the main issue as whether the dismissal was justifiable and lawful, applying Sections 43 and 45 of the Employment Act, 2007. It held that the Respondent had a genuine reason for termination since the certificate misuse was common cause and the Claimant could not explain how his documents reached the impostor. However, the termination failed the procedural fairness limb: investigations were not taken full circle, the impostor was not availed for cross-examination, and the Respondent placed both men on the same chopping block. Reinstatement was declined on the common law principle against specific performance in contracts of service, the Court instead awarding 8 months' salary (Kshs. 445,488) plus one month's notice pay (Kshs. 55,686), totalling Kshs. 501,174. Claims for leave, severance and December salary failed; severance applies only to redundancy under Section 40. The Respondent was ordered to pay costs. Judgment delivered at Nairobi on 2 May 2013 by Linnet Ndolo, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant's dismissal was justifiable and lawful, i.e. whether the Respondent had a genuine reason for the termination and whether fair procedure was followed
  2. 2.Whether reinstatement should be ordered
  3. 3.What reliefs, if any, the Claimant is entitled to

Key legal issues

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01

Whether the Respondent had a genuine reason for summary dismissal

Holding

The Respondent had a genuine reason under Section 43 - the Claimant's KCE certificate was used by an impostor to secure employment, and the Claimant could not explain how his documents reached the impostor.

Reasoning

It was common cause that the Claimant's KCE Certificate was used by Walter Ondhowe alias Samwel Bradox, an impostor later arrested, charged and convicted. The Claimant denied giving his certificates to anyone and said none went missing. The Court noted the many coincidences but held the Respondent genuinely believed a valid reason existed at the time of termination.

p. 4
02

Whether the disciplinary procedure met the fairness test

Holding

The termination was procedurally unfair because the investigations were incomplete; the impostor was not availed for cross-examination and the Respondent took the easy option.

Reasoning

The Court analysed the investigation and disciplinary processes and found the Respondent failed to take investigations full circle. Given the seriousness of the allegations, the Respondent should have done more instead of placing the Claimant and the impostor on the same chopping block. Substantive justification without procedural fairness cannot sustain a dismissal.

p. 4
03

Whether reinstatement should be granted

Holding

Reinstatement declined; compensation of 8 months' salary awarded instead.

Reasoning

Reinstatement is a premiere remedy under Sections 49 and 50 of the Employment Act but is subject to the common law principle against specific performance of contracts of service except in very exceptional circumstances, as echoed by Mukunya J in the Masinde Muliro case cited by the Respondent. The stringent conditions were not met.

p. 5

Legal principles established

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  • An employer must prove the reason for termination; failure renders the termination unfair under Section 45
  • Termination must satisfy both substantive justification and procedural fairness
  • Reinstatement is exceptional and subject to the common law principle against specific performance in contracts of service

Court orders

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  1. 1.Respondent to pay 8 months' salary in compensation for unfair termination, Kshs. 445,488
  2. 2.Respondent to pay 1 month's salary in lieu of notice, Kshs. 55,686
  3. 3.Total award of Kshs. 501,174
  4. 4.Respondent to pay the costs of the case

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LN
majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Industrial Court under the Employment Act, 2007

Relief refused

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Declaration that the termination was unfair (subsumed into compensation) and reinstatement

Stringent conditions for reinstatement not established; common law principle against specific performance in contracts of service applies

p. 4

Prorata/accrued leave

The Code of Regulations for Teachers makes adequate provision for leave during school holidays

p. 5

Severance pay

Severance applies only to redundancy under Section 40 of the Employment Act

p. 5

Salary for the month of December 2010

The Claimant was not on duty in December 2010

p. 5

Costs

The Respondent will pay the costs of this case.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The final effect of this award is as follows: a) 8 months' salary in compensation for unfair termination ................Kshs. 445,488 b) 1 month's salary in lieu of notice.................................................................55,686 Total................................................................................................................501,174 The Respondent will pay the costs of this case.
p. 5Final orders and award
for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness
p. 4Dual test for fair termination
the Respondent failed the test of procedural fairness in that it did not take its investigations full circle
p. 4Procedural fairness
the common law principle that there should be no order for specific performance in a contract of service except in very exceptional circumstances
p. 4Reinstatement
The claim for severance pay has no basis as it is only applicable in cases of redundancy under Section 40 of the Employment Act.
p. 5Severance pay

Issues in the judgment

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minor

Judgment introduces the procedural fairness analysis with an erroneous reference to Section 43 instead of Section 41 of the Employment Act

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, "WALTER OGAL ANURO V TEACHERS SERVICE COMMISSION [2013] KEELRC 386 (KLR)", Case Analysis (2013). Cause 955 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/386/eng@2013-05-02

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