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ELRCPartially AllowedNot stated in the judgment (Industrial Cause; Claim filed 25th June 2010)· [2014] KEELRC 223 (KLR)

Charles Patterson Otwori v Management Science for Health [2014] KEELRC 223 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
19 June 2014
1,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer with valid reasons for firing still lost because it skipped proper procedure — flawed disciplinary process made the dismissal unfair.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent under a contract dated 11th May 2009 and seconded to Intra Health, was dismissed on 10th June 2010 following a disciplinary meeting of 3rd June 2010 occasioned by a verbal altercation with his supervisor, Pamela McQuide. He sought declarations of wrongful and unfair dismissal, reinstatement without loss of service, or in the alternative pay for the balance of his 40-month contract (Kshs. 14,300,000), twelve months' compensation (Kshs. 4,290,000), pension and costs. The Respondent maintained the dismissal was justified, that the Claimant was heard and appeared before a disciplinary panel, and that the altercation constituted gross misconduct. The court framed three issues: whether the termination was wrongful; what remedies flow; and costs. Applying Section 47(5) of the Employment Act on burden of proof, the court held that although the misconduct substantively justified dismissal, the letter convening the disciplinary meeting woefully failed to meet the Section 41 threshold, rendering the termination procedurally unfair. The Claimant was held not entitled to reinstatement or pay for the balance of the contract because the outcome would have held good notwithstanding the flawed process. He was awarded pay for days worked, leave pay, one month's notice pay, two months' compensation for unfair dismissal, costs, and a certificate of service. Pension dues could not be determined as the offshore pension service provider was not a party. Judgment was delivered at Nairobi on 19th June 2014 by Nzioki wa Makau, Judge.

Key legal issues

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01

Whether the termination was wrongful/unfair

Holding

The termination was substantively justified by the employee's misconduct but procedurally unfair because the invitation to the disciplinary meeting failed to meet the Section 41 threshold.

Reasoning

Section 41 requires an employer to explain the reason for contemplated termination and allow the employee a representative. The letter inviting the Claimant to the 3rd June 2010 meeting fell woefully short of this. The verbal altercation with a supervisor amounted to gross misconduct, so the outcome would have held good, but the flawed process entitled the Claimant to compensation under Section 12 of the Industrial Court Act read with Sections 49 and 50 of the Employment Act.

p. 3
02

Remedies available

Holding

Reinstatement and payment for the balance of the contract refused; pay for days worked, leave pay, one month's notice pay, two months' compensation, costs and certificate of service awarded.

Reasoning

Because the employee's misconduct would have justified dismissal had proper procedure been followed, the drastic remedies of reinstatement and pay for the remaining 40-month contract were unavailable. Compensation was limited to modest heads under the Employment Act. Pension dues could not be determined as the offshore pension service provider was not joined as a party.

p. 3
03

Whether the Claimant's case was credible, genuine and brought in good faith

Holding

Rejected as an issue for determination.

Reasoning

The Respondent sought to add a fourth issue questioning the good faith of the claim. The court held this was a non-issue since the determination of the substantive issues would itself reveal whether the claim lay.

p. 2

Legal principles established

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  • The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
  • An employer terminating for misconduct must comply with the procedure in Section 41 of the Employment Act, and an employee's HR knowledge does not excuse the employer from compliance

Court orders

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  1. 1.Payment to the Claimant for days worked
  2. 2.Leave pay for leave days not taken
  3. 3.One month's notice pay
  4. 4.Two months' compensation for unfair dismissal
  5. 5.Costs of the suit to the Claimant
  6. 6.Issuance of a Certificate of Service
Jurisdiction invoked
Industrial Court Act, Section 12, read with Sections 41, 49 and 50 of the Employment Act

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, "Charles Patterson Otwori v Management Science for Health [2014] KEELRC 223 (KLR)", Case Analysis (2014). Not stated in the judgment (Industrial Cause; Claim filed 25th June 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/223/eng@2014-06-19

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