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ELRCPartially AllowedNot stated in judgment as extracted· [2013] KEELRC 955 (KLR)

Fred Babu Ochieng v Medicins San Frontiers [2013] KEELRC 955 (KLR)

Industrial Court of Kenya
18 December 2013
1,522 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee unfairly dismissed because his employer denied him a fair hearing before firing him.

What this practically means

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Executive summary

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The claimant, Fred Babu Ochieng, sued his former employer, the respondents, for unfair summary dismissal. Employed from February 2007 as a Laboratory Technologist and promoted to Laboratory Manager by September 2009 on a salary of Kshs 117,267/=, he was dismissed on 19/6/2012 for gross misconduct after ten Pima CD4 testing machines, wrongly routed from Paris, were put to use at the Homa Bay field office without Ministry of Health validation. He received a show cause letter dated 12/6/2012, replied, and was dismissed a week later. The respondents maintained he caused the unvalidated machines to be used, warranting summary dismissal under Clause 8.2 of their internal regulations. The court framed three issues: whether the claimant's conduct warranted summary dismissal, whether the dismissal procedure was correct, and entitlement to remedies. On the evidence, including Heads of Department minutes showing his supervisors Richard and David participated in meetings authorizing use of the machines, the court held blame could not fall solely on the claimant; the field co-ordinator who authorized use was not disciplined, amounting to selective, discriminatory discipline. His procedural omission did not warrant summary dismissal. The court further held the mandatory fair-hearing requirements of Section 41 of the Employment Act 2007 and Article 50(1) of the Constitution were flouted, converted the summary dismissal to a normal termination, and awarded notice pay, service pay for three years and six months' salary as compensation, totalling Kshs 996,769/= subject to statutory deductions, a certificate of service, and costs against the respondents.

Key legal issues

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01

Whether the claimant's conduct warranted summary dismissal

Holding

No - the claimant acted under authorization from supervisors who were never disciplined; his omission did not warrant dismissal without notice

Reasoning

The minutes of the Heads of Department meeting (APP 3) showed the claimant's bosses Richard and David were present and the machines were used following a series of meetings and authorization by supervisors to avoid the cartridges being destroyed. The field co-ordinator authorized their use and was not disciplined. The court held blame could not fall on the claimant alone and that selective discipline was discriminatory; his procedural omission did not merit summary dismissal.

p. 2
02

Whether the disciplinary procedure adopted was fair

Holding

No - the procedure flouted Section 41 of the Employment Act 2007 and Article 50(1) of the Constitution; the dismissal was unfair and was converted to a normal termination

Reasoning

The court reiterated that Section 41 requires the employer to explain reasons in a language the employee understands and to hear and consider representations before termination, with a chosen colleague or union representative present. Article 50(1) guarantees a fair hearing. The ILO Committee of Experts requires the opportunity to defend oneself before termination. These provisions were flouted, rendering the dismissal unjustified and wrongful.

p. 3
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Whether the claimant was entitled to remedies

Holding

Yes - notice pay, service pay for 3 years and 6 months' salary as compensation, plus certificate of service and costs

Reasoning

Having found the dismissal unfair and converted it to normal termination, the court awarded one month's salary in lieu of notice, 15 days' salary per year worked for the 3 years from 2009 to 2012, and six months' salary as compensation for wrongful termination, subject to statutory deductions, together with a certificate of service and costs of the cause.

p. 3

Legal principles established

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  • An employer must accord an employee a fair hearing, including explanation of reasons and an opportunity to be accompanied and heard, before termination for misconduct, poor performance or incapacity
  • The opportunity to be heard must be given before termination of employment, not only after
  • Selective disciplinary action against one employee while equally responsible supervisors are not disciplined constitutes discrimination and cannot justify summary dismissal

Court orders

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  1. 1.Payment of 1 month salary in lieu of notice of Kshs 117,267/=
  2. 2.Payment of 15 days salary for each year worked from 2009 to 2012 (3 years) Kshs 175,900.5
  3. 3.Payment of 6 months salary as compensation for wrongful termination Kshs 703,602, subject to statutory deductions (total Kshs 996,769/=)
  4. 4.Claimant to be issued with a certificate of service
  5. 5.Respondents to pay costs of this cause

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Section 44(3) and (4)
  • Constitution of KenyaArticle 50(1)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act 2007 (first-instance claim before the Industrial Court)

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, "Fred Babu Ochieng v Medicins San Frontiers [2013] KEELRC 955 (KLR)", Case Analysis (2013). Not stated in judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/955/eng@2013-12-18

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