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ELRCPartially AllowedNot stated in the judgment as provided· [2014] KEELRC 635 (KLR)

Kenya Union of Domestic Hotels Educational Institutions Hospitals & Allied Workers v Naaro High School [2014] KEELRC 635 (KLR)

Industrial Court of Kenya
26 February 2014
2,526 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 a school watchman's 20-year terminal benefits could not be wiped out by an unproved drunkenness allegation, awarding him over Ksh. 230,000.

What this practically means

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Executive summary

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The Grievant, employed as a watchman by the Board of Governors of Naaro High School on 1st February 1988, was suspended without pay on 22nd May 2008 and summarily dismissed by the Board on 17th July 2008 for allegedly reporting to work drunk and for gross insubordination (his failure to respond to a notice to show cause and to write an apology to the head teacher). He claimed notice pay, service gratuity for 20 years, leave pay, suspension salary, weekly off days, a certificate of service and 12 months' compensation for unfair dismissal, relying on the CBA between the Ministry of Education and KUDHEIHA incorporated into his 1988 appointment letter. The Respondent contended the CBA ceased to apply in 1993 pursuant to Legal Notice No. 263 of 1993 and that the dismissal was lawful under the Employment Act, 2007. The Court held that the Legal Notice superseded the Ministry-level CBA only for employees hired or joining the union after 1993 and did not nullify terms already incorporated into individual contracts, following the erstwhile Industrial Court decisions in KUDHEIHA v Masii Secondary School and KUDHEIHA v Musa Gitau Primary School. On the merits, the Court found the drunkenness allegation unproved, held that the Grievant's silence in the face of a biased process was not insubordination, and that dismissing a 20-year employee near retirement over a minor offence was unjust. The Court reduced the summary dismissal to a normal termination and awarded Ksh. 230,202/= comprising notice pay, service gratuity, prorata 2008 leave, half salary for the suspension period, weekly off-day pay and a certificate of service, with interest at court rates and costs to the Grievant.

Key legal issues

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01

Applicability of the Ministry of Education/KUDHEIHA CBA to the Grievant

Holding

The CBA terms were incorporated into the Grievant's 1988 letter of appointment and survived Legal Notice No. 263 of 1993, which only required future recognition agreements to be negotiated directly with Boards of Governors.

Reasoning

The letter of appointment expressly subjected employment to the terms of the CBA between the Ministry of Education and KUDHEIHA. Legal Notice No. 263 of 1993 amended the Education (Board of Governors) Order to require Boards to sign recognition agreements directly with unions, superseding the Ministry-level CBA only for employees employed or joining the union after 1993. The Court adopted the reasoning of the erstwhile Industrial Court in KUDHEIHA v Masii Secondary School and KUDHEIHA v Musa Gitau Primary School that pre-existing incorporated CBA terms remained binding.

p. 4
02

Whether the summary dismissal was lawful and fair

Holding

The dismissal was unjust: the allegation of drunkenness was not proved, the refusal to write an apology was not insubordination, and an employee of 20 years standing near retirement should not lose all terminal benefits over a minor offence.

Reasoning

The only triggering offence was reporting one hour late, allegedly drunk. The Grievant consistently denied being under the influence of alcohol and the Respondent adduced no proof. His failure to respond to the show-cause notice was treated as insubordination, which the Court found to be a mis-step by the Principal since the Grievant had a right to remain silent where he perceived bias. The Board was misled. Considering his 20 years of service and age (49), the Court reduced the summary dismissal to normal termination.

p. 5
03

Entitlement to leave, suspension pay and off days

Holding

The Grievant took his 2007 leave (42 days) but was entitled to prorata leave for 2008 and to half salary for the suspension period; the Respondent's off-days record did not include him, proving he was denied weekly off days for 3 years.

Reasoning

A letter of 30/11/2007 showed 42 days leave granted from 3rd December 2007 to 7th February 2008, defeating the claim for 2007 leave, but there was no evidence of leave taken in 2008, entitling him to prorata pay. The off-days record produced for subordinate staff excluded the Grievant, so the Court accepted his claim for weekly off days for 36 months.

p. 4

Legal principles established

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  • Legal Notice No. 263 of 1993 did not nullify the terms of a CBA already incorporated into individual contracts of employees employed during its subsistence; those terms remain applicable until varied by a new CBA or fresh individual contracts.
  • An employee's silence in the face of a notice to show cause, where he believes the employer is biased against him, cannot constitute insubordination.

Court orders

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  1. 1.Three months pay in lieu of notice in terms of the CBA in the sum of Ksh. 23,490/=
  2. 2.Service gratuity for the 20 years at the rate of one month salary for each completed year of service in the sum of Ksh. 156,000/=
  3. 3.Prorata annual leave for the year 2008 in the sum of Kshs. 5,481/=
  4. 4.Half salary for the 27 days under suspension from 22nd May to 17th July 2008 in the sum of Ksh. 3,915/=
  5. 5.Weekly off days for 36 months in the sum of Ksh. 40,716/=
  6. 6.The Grievant to be issued with a certificate of service for 20 years
  7. 7.Total award of Kenya Shillings 230,202/= payable with interest at Court rates from the date of judgment to payment in full
  8. 8.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act2007 (generally)
  • Education ActSection 10(1)
  • Education (Board of Governors) (Amendment) Order, 1993 - Legal Notice No. 263 of 1993Regulation 17

Cases cited (2)

  • KUDHEIHA v Masii Secondary School
    Industrial Court of Kenya Cause No. 39 of 2008
  • KUDHEIHA Workers v Musa Gitau Primary School
    Cause 110 of 2005
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court of Kenya (claim for unlawful and unfair summary dismissal and terminal benefits under a claim/memorandum of claim)

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, "Kenya Union of Domestic Hotels Educational Institutions Hospitals & Allied Workers v Naaro High School [2014] KEELRC 635 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/635/eng@2014-02-28

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