Evans Ochieng Nudih v Equity Bank Limited [2014] KEELRC 236 (KLR)
The bottom line
#A Kenyan court ruled Equity Bank had good reason to fire an employee, but the dismissal was still unfair because he was never given a chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Validity of reason for summary dismissal
There was valid and fair reason for dismissal - the Claimant's incompatibility, arrogance, uncooperativeness and insubordination
The Court found a chain of occurrences from Kericho to Hola showing persistent complaints about the Claimant's conduct: refusing to wear a tie, denigrating superiors, rude e-mails, offensive language to women's group customers. He was cautioned and undertook to reform, but the relationship irreparably broke down. The Court adopted the incompatibility jurisprudence, holding the Respondent satisfied Sections 43 and 45 of the Employment Act 2007 on substance.
Fairness of dismissal procedure
The procedure was unfair because the Claimant was not heard prior to dismissal
The Claimant was not given a hearing before the decision to dismiss was made, contrary to the Respondent's own Human Resource Manual and Sections 41 and 45 of the Employment Act 2007. Wamwati conceded the Claimant was not heard. The Respondent also failed to prove it delivered the letter of summary dismissal to the Claimant. Compensation of three months' gross salary was awarded for procedural unfairness.
Service pay claim
The service pay claim failed for lack of proof of entitlement
The Claimant provided no material showing the basis for the service pay claim. The contract and HR policy made no provision for it, and no collective agreement or wage instrument was cited that would justify service pay under Section 35 of the Employment Act. The prayer was declined.
Distinction between unfair and unlawful/wrongful termination
The Court agreed the two concepts are distinct but held that the Claimant's pleadings invoking procedural fairness and remedies allowed it to award compensation for unfair termination
Relying on the Otieno and Akuti Awards, the Court accepted the Respondent's submission on the dichotomy between unfair and wrongful/unlawful termination. However, because the Claimant had pleaded remedies such as reinstatement and questioned the manner of termination - traditional elements of unfair termination - the Court could consider compensation for unfair termination rather than damages for unlawful termination.
Legal principles established
#- Incompatibility of an employee with the workplace is a fair reason for termination of employment
- An employer must demonstrate irreparable breakdown of the employment relationship and that the employee was corrected, counseled and given time to mend before dismissing on incompatibility
- Failure to hear an employee prior to dismissal renders the procedure unfair, contrary to Sections 41 and 45 of the Employment Act 2007
- 'Unfair' and 'wrongful or unlawful' termination are distinctive concepts
Court orders
#- 1.Termination was declared unfair on account of procedure
- 2.The Claimant is granted 3 months' gross salary at the rate applicable as of 27th June 2011
- 3.The Claimant shall be paid 1 month basic salary in notice pay at the rate applicable on 27th June 2011
- 4.No order on the costs and interest
- Jurisdiction invoked
- Sections 12 and 15 of the Labour Institutions Act 2007; Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Beatrice Mola v Kenyatta University & 3 others [2015] KEELRC 1000 (KLR)[2015] KEELRC 1000 (KLR)15 Apr 2015
Cite this brief
#Cite this brief
Caselaw, "Evans Ochieng Nudih v Equity Bank Limited [2014] KEELRC 236 (KLR)", Case Analysis (2014). Cause Number 1063 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/236/eng@2014-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.