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ELRCPartially AllowedNot stated in judgment· [2013] KEELRC 716 (KLR)

Kepha Thuo Magua v Board Of Governors Satima Secondary School [2013] KEELRC 716 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
26 July 2013
1,283 words in judgment
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The bottom line

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A Kenyan court ruled a school accounts clerk's dismissal unfair because he was blamed without evidence and denied a hearing with his chosen representative.

What this practically means

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Executive summary

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The claimant, an accounts clerk employed by the respondent from 17.02.2005 to 19.07.2010, sued for a declaration that his termination was unfair and for terminal dues including service gratuity, house and medical allowances, leave pay and notice pay. His salary had been unilaterally reduced from Kshs.16,999 to Kshs.12,000 by a letter dated 1.05.2010 citing low qualifications and low student population. He was dismissed by letter dated 19.07.2010 for gross insubordination and participating in a student strike, after he declined to attend a disciplinary meeting without his union official. The court found the respondent failed to establish the reasons for termination: there was no evidence linking the claimant to the student strike, and his genuine grievances over unilateral adverse changes to his terms of service could not constitute a valid reason under section 46(h) of the Employment Act. The Government circular on salary determination did not permit unilateral variation contrary to section 10(5). The denial of a hearing accompanied by a person of his choice, including a union representative, offended section 41 and rendered the procedure defective. The court awarded twelve months' salary (Kshs.203,940.00) plus one month's pay in lieu of notice (Kshs.16,995.00), totaling Kshs.220,935.00. Claims for gratuity, leave pay, medical and house allowances failed for want of entitlement or proof. Judgment was entered for the claimant with a declaration of unfair dismissal, delivery of a certificate of service, and costs against the respondent.

Key legal issues

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01

Whether the termination was unfair for lack of valid reason

Holding

Termination was unfair because the respondent failed to establish the reasons stated in the termination letter, and the claimant's genuine grievances could not be a valid reason

Reasoning

The court found no evidence linking the claimant to the student strike, and held that his complaints about unilateral adverse changes to his terms of service were protected under section 46(h) of the Employment Act. The Government circular empowering the respondent to set salaries did not authorize unilateral variation contrary to section 10(5). The respondent therefore failed under sections 43 and 47(5) to justify the termination.

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02

Whether the termination procedure was fair

Holding

The procedure was defective because the claimant was denied a hearing in the presence of a person of his choice including a union representative

Reasoning

Section 41 of the Employment Act entitles an employee to a hearing accompanied by a person of his choice, including a union official. The claimant refused to attend the meeting of 8.07.2010 without his union official, and the respondent proceeded without affording him that accompaniment, rendering the procedure defective and the termination procedurally unfair.

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Remedies for unfair termination

Holding

Compensation equivalent to twelve months' gross salary plus one month's pay in lieu of notice, certificate of service and costs

Reasoning

The court awarded twelve months' salary at the legitimate last monthly gross pay of Kshs.16,995/= (Kshs.203,940.00) plus one month's pay in lieu of notice (Kshs.16,995.00) under section 35(1)(c), totaling Kshs.220,935.00. Claims for gratuity, leave, medical allowance and house allowance failed for want of entitlement or proof.

p. 2

Legal principles established

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  • An employer cannot unilaterally vary terms and conditions of employment; changes must be effected through a consultative process
  • An employee's genuine grievances about adverse unilateral changes to terms of service cannot constitute a valid reason for termination
  • Denial of a hearing in the presence of a person of the employee's choice, including a union representative, renders termination procedure defective

Court orders

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  1. 1.A declaration that the dismissal of the claimant by the respondent was unfair
  2. 2.The respondent to pay the claimant Kshs.220,935.00 by 1.10.2013 and failing which interest to be payable from the date of judgment till full payment
  3. 3.The respondent to deliver to the claimant the certificate of service by 1.08.2013
  4. 4.The respondent to pay costs of the case

Authorities

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Legislation

  • Employment Act, 2007section 43
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 46(h)
  • Employment Act, 2007section 10(5)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 35(6)
  • Employment Act, 2007section 35(1)(c)
Jurisdiction invoked
Employment and labour relations dispute 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 (3)

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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, "Kepha Thuo Magua v Board Of Governors Satima Secondary School [2013] KEELRC 716 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/716/eng@2013-07-26

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