JASPER ROLI V KENYA TEA DEVELOPMENT AGENCY LTD [2013] KEELRC 411 (KLR)
The bottom line
#A Kenyan court ruled KTDA unfairly dismissed an employee because its disciplinary appeal committee wasn't impartial, though most money claims failed.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of the claimant was unfair
Termination was unfair because the Staff Appeal Committee was not impartial - a third of its members had sat on the Staff Disciplinary Committee
The court found the claimant had a right of appeal under the respondent's disciplinary process, the Employment Act and natural justice. The appeal must be impartial and free from anything rendering its impartiality doubtful. Evidence that a third of those present at the SDC also sat on the Staff Appeal Committee was not denied by the respondent in any material way. The appeal body's lack of impartiality made the termination unfair notwithstanding valid reasons for discipline.
Whether the respondent could reopen a disciplinary matter after issuing a first warning
Yes - the warning was not a final disciplinary action and the sanctions under the HR Manual could be issued in singular or multiple depending on the gravity of the breach
The HR Manual provided that any or more of the listed sanctions could be applied depending on the gravity of the breach. The claimant's response to the NTSC did not address the issues of authorization, use of the vehicle outside stipulated hours, and damage. The court found valid reasons for referring the matter to the Staff Disciplinary Committee and held the respondent acted fairly in that respect.
Procedural fairness under Sections 41 and 44 of the Employment Act
An employer invoking Section 44(4) summary dismissal must still comply with Section 41(2) - notify the employee and hear representations
The court held that even where grounds amount to gross misconduct, Section 41(2) applies and the employee is entitled to its full protection. The obligation to hear the employee applies whether or not payment in lieu of notice is made. The claimant was given this opportunity through the NTSC of 23rd August 2010 and his response of 24th August 2010.
Terminal dues claims
Claims for night out allowance, leave travel allowance and study reimbursement failed
The night out allowance was unapproved, related to March 2001 and was time-barred under Section 90. The leave travel allowance had lapsed under Section 28(4). Study reimbursement required prior application and approval under respondent policy and none was evidenced. The claimant had also acknowledged receipt of all dues on clearance.
Legal principles established
#- An employer must, under Section 41(2) of the Employment Act, notify and hear an employee before termination, including for gross misconduct or summary dismissal
- The right of appeal from a disciplinary decision must be heard by an impartial body; overlap of membership between the disciplinary and appeal committees offends natural justice and renders termination unfair
Court orders
#- 1.A declaration that the termination of employment of the claimant by the respondent was unfair
- 2.The respondent to pay the claimant a sum of Ksh.86,967.44
- 3.The respondent to pay the costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (Cause filed under the Industrial Court's jurisdiction over unfair termination claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JASPER ROLI V KENYA TEA DEVELOPMENT AGENCY LTD [2013] KEELRC 411 (KLR)", Case Analysis (2013). Cause 1602 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/411/eng@2013-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.