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ELRCPartially AllowedNot stated in the judgment (Claim filed 3 June 2011)· [2013] KEELRC 845 (KLR)

Ismail Hassan Abdullahi v Kenya Ports Authority [2013] KEELRC 845 (KLR)

Industrial Court (now Employment and Labour Relations Court)
11 October 2013
3,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Ports Authority wrongly ignored its own investigators' findings when dismissing an employee, and the court awarded him nearly Kshs 400,000.

What this practically means

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Executive summary

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The Claimant, employed by Kenya Ports Authority from 10 April 1997 and last serving as a Sergeant, was arrested in October 2007 over theft of motor vehicle parts from a customs yard and suspended without pay in January 2008. A Committee of Inquiry in mid-2008, at which he was represented by a union official, found insufficient evidence and recommended reinstatement and payment of withheld salaries; the Personnel Manager recommended a warning and transfer. The Managing Director nonetheless directed dismissal, effected by letter of 5 December 2008, before the conclusion of the criminal trial at which the Claimant was later acquitted. The court held that conduct after 2 June 2008 was governed by the Employment Act, 2007. Procedurally the process was fair, but substantively the dismissal offended section 45(4)(b) because no basis was laid for the Managing Director to ignore the findings of the internal fact-finders, and the Respondent called no eyewitnesses to prove the reasons for dismissal. The court also held that a disciplinary process may lawfully run in parallel with criminal proceedings. The court awarded one month's salary in lieu of notice (Kshs 32,630/-) and withheld salaries for 11 months and 5 days (Kshs 365,205/-), totaling Kshs 397,835/-, with costs and interest from filing, and directed issuance of a certificate of service. Pension, general damages and three months' notice pay were declined. The claim partially succeeded.

Key legal issues

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01

Applicable law on termination given the statutory transition

Holding

Conduct before 2 June 2008 is tested against the repealed Employment Act, cap 226 and the Respondent's internal regulations; conduct after that date against the Employment Act, 2007

Reasoning

The Employment Act, 2007 commenced on 2 June 2008 and introduced procedural fairness (section 41) and substantive fairness (sections 43, 45, 47(5)). The suspension pre-dated the new Act, but the Committee of Inquiry and the dismissal post-dated it, so the new Act governed the fairness of the process and the dismissal.

p. 3
02

Procedural fairness

Holding

The process was procedurally fair; the Claimant was furnished with a charge sheet, participated in the Committee of Inquiry and was represented by a union official

Reasoning

The Claimant was charged, appeared before the Committee on 5 and 6 August 2008, was represented by Mr. Munyao of the Dock Workers Union who asked questions of witnesses, and the minutes ran to some 15 pages. The court was satisfied the process complied with the Revised Staff Regulations 2002 and section 41 of the Employment Act.

p. 4
03

Substantive fairness

Holding

The dismissal was unfair because the Managing Director ignored the findings and recommendations of the Committee of Inquiry and the Personnel Manager without laying any basis

Reasoning

The Committee of Inquiry found insufficient evidence and recommended reinstatement and payment of withheld salaries; the Personnel Manager recommended a warning and transfer. The Managing Director nonetheless directed dismissal on the ground the evidence was 'too strong', without any evidential basis, and the Respondent called no eyewitnesses to discharge its burden under sections 43, 45 and 47(5).

p. 5
04

Parallel disciplinary and criminal processes

Holding

A disciplinary process may lawfully proceed in parallel with criminal proceedings

Reasoning

The disciplinary process inquires into breach of the employment relationship and is governed by principles such as mutual trust and confidence, while the criminal process aims at conviction and sentence by an independent court. The employer is in charge of the former; the Republic and judiciary of the latter. Section G.5(f) of the Respondent's regulations expressly permitted parallel administrative action.

p. 5
05

Reliance on section 17(c) of the repealed Employment Act

Holding

The dismissal could not validly rest on section 17(c) of the repealed Act as the Claimant was not charged with wilful neglect or careless performance of work; the reference was inadvertent and the 2007 Act applied at dismissal

Reasoning

Section 17(c) of the repealed Act dealt with summary dismissal for wilful neglect or careless and improper performance of work. The charges against the Claimant concerned theft of vehicle parts, not neglect of work. In any event, by December 2008 the Employment Act, 2007 was in force, whose section 17 deals with payment of wages, not dismissals.

p. 4

Legal principles established

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  • The outcome of a disciplinary process need not depend on the outcome of a parallel criminal process because the two serve different purposes and are governed by different legal principles
  • Where an employer's internal fact-finders recommend lesser sanction or reinstatement, dismissal requires a demonstrated basis to depart from those findings, failing which it offends section 45(4)(b) of the Employment Act
  • Costs do not automatically follow the event in the Industrial Court; the court exercises a discretion to make a just costs order

Court orders

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  1. 1.Declaration that the dismissal of the Claimant was not in accordance with justice and equity and therefore unfair
  2. 2.Award of one month's salary in lieu of notice of Kshs 32,630/-
  3. 3.Award of withheld salaries for 11 months and 5 days of Kshs 365,205/-
  4. 4.Total award of Kshs 397,835/-
  5. 5.Claimant to have costs of the cause with interest on the decretal sum from the time of filing the Claim
  6. 6.Claim for general damages declined
  7. 7.Respondent directed to issue the Claimant with a certificate of service pursuant to section 51 of the Employment Act

Authorities

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Legislation

  • Employment Act (cap 226) (repealed)section 17(c)
  • Employment Act, 2007sections 41, 43, 45(2), 45(4)(b), 47(5), 49(1)(c), 49(4), 51
  • Revised Staff Regulations 2002 (Kenya Ports Authority)sections G.5(e), G.5(f)
  • Kenya Ports Authority Disciplinary Handbook 2008sections K.7(d), K.7(f), K.8(u)
  • Kenya Ports Authority Actsection 66
  • Criminal Procedure Codesection 210

Cases cited (2)

  • Patrick Njuguna Kariuki v Del Monte (K) Ltd
    Cause No. 9523 of 2011
  • Mathew Kipchumba Kosgei v Baringo Teachers SACCO
    Cause No. 37 of 2013
Jurisdiction invoked
Jurisdiction as the Industrial Court under the Employment Act, 2007 over an unfair/unlawful termination claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Ismail Hassan Abdullahi v Kenya Ports Authority [2013] KEELRC 845 (KLR)", Case Analysis (2013). Not stated in the judgment (Claim filed 3 June 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/845/eng@2013-10-11

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