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ELRCPartially AllowedCause No. 1563 of 2011· [2013] KEELRC 697 (KLR)

Patrick Angala v Pathfinder International (Kenya) [2013] KEELRC 697 (KLR)

Industrial Court of Kenya
3 July 2013
MOMAUREEN ONYANGO
2,416 words in judgment
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The bottom line

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A Kenyan court awarded an employee nearly Kshs 1 million after his employer failed to prove fraud allegations behind his dismissal.

What this practically means

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Executive summary

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The claimant, employed by the respondent on a two-year fixed contract as data officer in Mombasa, was sent on mandatory leave on 23rd June 2011 after allegations of fraud concerning imprest accounting, subjected to a disciplinary hearing on 28th June 2011, and summarily dismissed with effect from 25th July 2011 on the ground that he had obtained fraudulent receipts for hotel accommodation. He claimed unlawful and malicious termination, seeking notice pay, accrued leave, unlawful deductions, maximum compensation, salary arrears for the unexpired contract and relocation costs; the respondent denied the claim and counterclaimed Kshs.136,329 as an unaccounted-for imprest refund. The court framed three issues: the lawfulness of the dismissal, the claimant's entitlement to the prayers, and the counterclaim. Applying Sections 43 and 45 of the Employment Act, the court held that the burden of proving the termination reason lay on the employer, and since neither hotel had confirmed the receipts were not genuine, the fraud allegation was unproved and the dismissal unfair; it was also unfair to force the claimant to gather exculpatory evidence. The court awarded one month's notice (Kshs.136,632), six months' salary as compensation (Kshs.819,792) and refund of the unexplained Shs.40,000 deduction, totalling Kshs.996,424. The leave claim, salary arrears and the withheld-funds claim were dismissed for want of proof, as was the respondent's counterclaim. Judgment was entered for the claimant with costs.

Key legal issues

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01

Whether the summary dismissal was lawful and fair

Holding

The dismissal was unfair: the fraud allegation was not proved and the burden of proof was wrongly shifted to the claimant.

Reasoning

Section 45 of the Employment Act obliges the employer to prove a valid reason and fair procedure. Section 43 places the burden of proving the grounds on the employer. The respondent could not confirm from either hotel that the receipts were not genuine, yet demanded the claimant obtain written verification. Allegations of fraud therefore remained unproved and the summary dismissal on that ground was unfair.

p. 5
02

Whether the claimant was entitled to notice pay, compensation and refund of a salary deduction

Holding

Notice pay of one month, six months' salary as compensation and refund of the unexplained Kshs.40,000 deduction were awarded.

Reasoning

Having found the dismissal unfair, notice fell due under Section 49(1)(a). Compensation was capped at six months' salary given the fixed-term contract and length of service. The Kshs.734 (Shs.40,000) deduction lacked any explained statutory or contractual basis and was unlawful. Arrears for the unexpired contract and the leave claim failed for want of proof.

p. 5
03

Whether the respondent's counterclaim for Kshs.136,329 succeeded

Holding

The counterclaim was dismissed for want of evidence.

Reasoning

The sum claimed was imprest advanced to the claimant for travel and accommodation. The respondent adduced no evidence that the claimant failed to expend the money on the purposes for which it was given, and having failed to prove non-expenditure could not demand a refund.

p. 6

Legal principles established

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  • Under Section 45 of the Employment Act an employer must prove both the validity of the reason for termination and that fair procedure was followed.
  • Under Section 43 of the Employment Act the burden of proving the grounds for termination rests on the employer, which cannot shift it to the employee.
  • An employee dismissed for alleged fraud is entitled to compensation under Section 49(1)(a) including one month's salary in lieu of notice.

Court orders

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  1. 1.The dismissal of the claimant is declared unfair.
  2. 2.Judgment is entered for the claimant in the total sum of Kshs.996,424.00.
  3. 3.The Respondents counter claim is dismissed.
  4. 4.The Respondent shall pay claimants costs for the case.

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 43
  • Employment ActSection 49(1)(a)
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim for unfair summary dismissal under the Employment Act

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, "Patrick Angala v Pathfinder International (Kenya) [2013] KEELRC 697 (KLR)", Case Analysis (2013). Cause No. 1563 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/697/eng@2013-07-03

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