Fred Babu Ochieng v Medicins San Frontiers [2013] KEELRC 955 (KLR)
The bottom line
#A Kenyan court ruled an employee unfairly dismissed because his employer denied him a fair hearing before firing him.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's conduct warranted summary dismissal
No - the claimant acted under authorization from supervisors who were never disciplined; his omission did not warrant dismissal without notice
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.
Whether the disciplinary procedure adopted was fair
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
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.
Whether the claimant was entitled to remedies
Yes - notice pay, service pay for 3 years and 6 months' salary as compensation, plus certificate of service and costs
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.
Legal principles established
#- 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
#- 1.Payment of 1 month salary in lieu of notice of Kshs 117,267/=
- 2.Payment of 15 days salary for each year worked from 2009 to 2012 (3 years) Kshs 175,900.5
- 3.Payment of 6 months salary as compensation for wrongful termination Kshs 703,602, subject to statutory deductions (total Kshs 996,769/=)
- 4.Claimant to be issued with a certificate of service
- 5.Respondents to pay costs of this cause
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act 2007 (first-instance claim before the Industrial Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.