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ELRCPartially AllowedCause No. 630 of 2012 (Memorandum of Claim dated 19th March 2012, filed 27th March 2012)· [2013] KEELRC 858 (KLR)

Edgar Ndemo Monyanyi v Catering & Tourism Development Levy Trustees [2013] KEELRC 858 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
26 September 2013
MOMaureen Onyango
3,477 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court reinstated a worker summarily dismissed over an April Fools' text message, ruling the dismissal procedurally and substantively unfair.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent since 1997 and by then a Levy Inspector II earning Kshs.87,482, was summarily dismissed on 12th April 2011 for gross misconduct arising from an April Fools' Day text message sent to a colleague insinuating that the Levy Manager and Procurement Manager had been picked up by the Kenya Anti-Corruption Commission. He claimed Kshs.29,793,159 in terminal benefits, notice pay, 12 months' compensation, general damages, loss of future earnings, reinstatement, costs and interest. The Respondent maintained the dismissal was lawful and in compliance with sections 41 and 44(4)(d) of the Employment Act and its Human Resource Manual. The court found the main facts undisputed and framed two issues: whether the dismissal was wrongful, and the remedies. On procedure, it held the Respondent failed to comply with section 41 of the Employment Act and clause 15.2 of the internal Terms and Conditions of Service: the Claimant was not informed of his right to accompaniment, the dismissal letter omitted the right of appeal, his appeal was decided by the same Chief Executive Officer who dismissed him, and the officers named in the message sat on the disciplinary committee that heard him. On substance, the Respondent adduced no evidence of injury to reputation or staff despondency, and the two officers were in fact later charged by KACC, so the message was the truth. Given the Claimant's 14 years of clean service, the dismissal was found malicious, wrongful and unfair both procedurally and substantively. The court rejected the argument that reinstatement applies only to termination and not summary dismissal, found no evidence that the position had been filled, and ordered reinstatement within 30 days, with costs to the Claimant. The monetary heads of claim were not awarded.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The dismissal was procedurally unfair because the Respondent failed to comply with section 41 of the Employment Act and clause 15.2 of the Human Resource Manual: the Claimant was not informed of his right to be accompanied by a colleague or union official, the dismissal letter did not advise him of his right of appeal, his appeal was decided by the same officer who dismissed him, and the officers named in the text message sat on the disciplinary committee.

Reasoning

The court traced the statutory requirements of section 41 (notice of charges, right to accompaniment, hearing of representations) and the internal procedure at clause 15.2 of the Terms and Conditions of Service, including clause 15.2.12 on appeals. It found the letters were all signed by the CEO, no representation right was communicated, the appeal was rejected by the dismissing officer, and the complainants sat on the committee. It concluded there was a failure to comply with both the statute and internal procedure.

p. 6
02

Validity of the reason for summary dismissal

Holding

The reason for dismissal - the April Fools' Day text message - was not a valid reason for summary dismissal given the Claimant's 14 years of unblemished service; no evidence proved injury to reputation or staff despondency, and the message later proved to be the truth.

Reasoning

The court noted the Respondent adduced no evidence that the reputation of the named officers or the organization was injured, or that despondency ensued. The officers had in fact been summoned and charged by KACC, so the message was substantially true and no reputation was injured. The court accepted the message was an April Fools' prank, possibly in bad taste, and, weighing the Claimant's long service and clean disciplinary record, found the dismissal malicious, wrongful and unfair both procedurally and substantively.

p. 7
03

Whether reinstatement was available and appropriate

Holding

Reinstatement was available notwithstanding the summary dismissal, and no evidence supported the Respondent's claim that the Claimant's position had been filled or that reinstatement would harm workplace harmony; reinstatement was the only appropriate remedy.

Reasoning

The court rejected the submission that reinstatement under section 49(3) applies only to termination and not summary dismissal, holding that summary dismissal is itself a mode of terminating employment. It found no evidence that the position had been filled, noted the Respondent is a state corporation with countrywide stations where the Claimant could be deployed, and considered his length of service and clean record in electing reinstatement over monetary compensation.

p. 7

Legal principles established

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  • Where officers alleged to have been defamed by an employee's message were in fact later summoned and charged by the Kenya Anti-Corruption Commission, the truth of the message means there was no reputation capable of being injured, and the dismissal on that ground is not substantively justified
  • A disciplinary hearing at which the persons allegedly offended by the employee's conduct sit as members of the disciplinary committee violates the rules of natural justice and section 41 of the Employment Act
  • Reinstatement under section 49(3) of the Employment Act is available as a remedy for summary dismissal, not only for termination, since summary dismissal is one of the ways in which employment may be terminated

Court orders

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  1. 1.The Respondent shall reinstate the Claimant to his former position of Levy Inspector 2 and treat him in all respects as if he did not leave service within 30 days from the date of the judgment
  2. 2.The Respondent shall pay the Claimant's costs

Authorities

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Legislation

  • Employment Act 2007section 44(d) / section 44(4)(d)
  • Employment Act 2007section 41
  • Employment Act 2007section 43
  • Employment Act 2007section 45
  • Employment Act 2007section 49(3)
  • Employment Act 2007section 12(1)

Cases cited (8)

  • Robai Musinzi v Safdar M Kaham, Cause No. 246 of 2012
  • Michale M Murungi v KARA
  • Obed Nthiwa v Commissioner Co-operative Development & Another, Misc. Application No. 382 of 2006
    (2007) eKLR
  • Joyce Manyusi v Evan Gicheru & 3 Others, Misc. Application No. 920 of 2005
  • David Onyango Oloo v The A-G, Civil Appeal No. 152/1986
  • R v The Staff Disciplinary Committee of Maseno University & 2 Others
  • CCSU v The Minister for Civil Service
    (HL 1984) (1985) 1 AC 375
  • R v Commissioner of Co-operatives ex parte Kirinyaga Tea Growers
    (1999) 1 EA 245
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act 2007 (first-instance claim for wrongful and unfair summary dismissal)

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, "Edgar Ndemo Monyanyi v Catering & Tourism Development Levy Trustees [2013] KEELRC 858 (KLR)", Case Analysis (2013). Cause No. 630 of 2012 (Memorandum of Claim dated 19th March 2012, filed 27th March 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/858/eng@2013-09-26

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