Joseph Nderitu Chege v Postal Corporation of Kenya [2014] KEELRC 777 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the suspension
The suspension was correctly initiated under the respondent's disciplinary procedures but was nonetheless unprocedural and unfair in its execution
The court found the accusation of irregularly leasing the Karatina plot fell within the suspension clause's grounds (neglect of duty), so invoking suspension was proper. However, the suspension letter neither detailed the irregularity nor asked the claimant to show cause, and was issued without prior notice or hearing. Additionally, the respondent's subsequent conduct of suspending, dismissing and sending the claimant on compulsory leave within two weeks evidenced lack of good faith, rendering the suspension unfair.
Prematurity of the claim regarding salary deprivation
The suit on the no-salary-during-suspension clause was premature because the claimant had not exhausted the contractual disciplinary mechanism
Although the clause depriving a suspended employee of salary appeared to depart from ordinary Human Resource practice (where employees on suspension are often placed on half salary), the court held it could not rewrite a voluntarily entered contract. The claimant's complaints about the leasing being lawful should have abided the outcome of the investigation; hence the suit was premature to that extent.
Effect of the respondent's subsequent letters on the suspension
The undelivered dismissal letter and the compulsory leave letter related to a different disciplinary matter, while the later appointment and transfer rendered the suspension superfluous
The dismissal letter of 27th September 2013 was never delivered or communicated to the claimant, so it could not supersede the suspension. The compulsory leave letter of 8th October 2013 concerned procurement breaches, not the Karatina lease. The court found the sequence of suspending, dismissing and placing on compulsory leave within two weeks 'quite some charade if not evidence of vendetta', and the subsequent appointment and transfer rendered the suspension inconsequential.
Legal principles established
#- A suspension without notice or a chance to be heard is unprocedural and unfair, even where the employer has a contractual power to suspend
- The court will not rewrite a contract voluntarily entered into by parties provided it conforms to relevant statutes and the constitution
- Subsequent inconsistent actions by an employer (dismissal, compulsory leave, fresh appointment and transfer) can render a suspension inconsequential
Court orders
#- 1.Declared that the claimant's suspension communicated by the letter dated 24th September, 2013 was unfair
- 2.Order rescinding the suspension
- 3.Any disciplinary action against the claimant, if necessary, must be carried out with procedural fairness, good faith, natural justice and in accordance with the laid down internal disciplinary mechanism
- 4.Claimant awarded the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under rule 16 of the Court's rules; employment dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Nderitu Chege v Postal Corporation of Kenya [2014] KEELRC 777 (KLR)", Case Analysis (2014). Memorandum of Claim filed 30th September, 2013 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/777/eng@2014-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.