SHIMEO AYIENDA ONTITA & 4 OTHERS V NAS AIRPORT SERVICES LIMITED [2013] KEELRC 426 (KLR)
The bottom line
#A Kenyan court ruled that an employer who waits for a criminal case's outcome before disciplining workers must accept the acquittal and pay them for the entire suspension period.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer, having tied suspension to the outcome of the criminal case, could terminate the Claimants before that outcome
The Respondent, having suspended the Claimants without pay pending the outcome of the criminal case, was bound by the acquittal and any action contrary to the CBA was void; the Claimants were entitled to the withheld salary.
The suspension letters expressly stated suspension was pending the outcome of the criminal case in accordance with Clause 10 of the CBA. The employer chose to wait for the criminal outcome instead of running its own disciplinary process. Having done so, it was bound by the acquittal on 21st December 2011, and the CBA required reinstatement upon innocence.
Effective date of termination where termination letters dated 31st December 2010 were never communicated
The termination took effect on 23rd January 2012 when the letters were received, not 31st August 2010 as backdated by the employer.
No evidence showed the contents of the termination letters were communicated before 23rd January 2012. The letters were addressed through the Catering Department although the Respondent knew the Claimants were on suspension, breaching the CBA communication clause. Communication is valid only upon receipt, so the Claimants remained employees until 23rd January 2012.
Whether the termination was unfair
The termination was unfair: no hearing, no valid reason, and the effective date was unlawfully backdated contrary to the CBA.
Section 45 of the Employment Act requires valid reason and fair procedure; Section 41 requires the employee be informed of reasons and heard. The Respondent gave no hearing, cited only the prolonged duration and sensitivity of the case, and backdated termination to 31st August 2010 while the Claimants were on suspension, contravening the CBA. Compensation was awarded under Section 49, graduated by length of service.
Legal principles established
#- Where an employer makes its disciplinary procedure subject to the outcome of a criminal trial, the employer must abide by the decision of the criminal court.
- A letter of termination takes effect only when its contents are communicated to and received by the employee.
Court orders
#- 1.Judgment entered on the admitted heads: salary for August 2010, three months' salary in lieu of notice, leave travelling allowance, termination gratuity and unpaid leave days, with the Respondent to compute the actual sums due to each Claimant for approval by the Claimants' advocates, failing which parties may move the Court
- 2.Claimants entitled to salaries withheld during suspension up to 21st December 2011 and deemed employees until 23rd January 2012, and thus entitled to salaries up to 23rd January 2012
- 3.Compensation for unfair termination: 9 months' salary each to Shimeo Ayienda Ontita, Bryan Ayub Ochieng and Martin Tira Malit; 6 months' salary each to George Otieno Agwada and Boniface Ngeso
- 4.Claimants awarded costs of the case
- 5.Respondent directed to compute the actual sum due to each employee and submit the computation to the Court for adoption, with final judgment to be given upon receipt
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SHIMEO AYIENDA ONTITA & 4 OTHERS V NAS AIRPORT SERVICES LIMITED [2013] KEELRC 426 (KLR)", Case Analysis (2013). Cause 199 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/426/eng@2013-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.