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ELRCPartially AllowedCause No 125 of 2013· [2014] KEELRC 902 (KLR)

Howard Andrew Nyerere v Kenya Airways Limited [2014] KEELRC 902 (KLR)

Industrial Court of Kenya
27 March 2014
LNLinnet Ndolo
2,409 words in judgment
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The bottom line

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Kenya Airways' dismissal of an employee was ruled unfair because it failed to prove misconduct and follow a fair disciplinary process.

What this practically means

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Executive summary

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The Claimant, formerly employed by Kenya Airways Limited as Team Leader, Baggage Online, was dismissed on 22nd June 2012 on allegations of operating company equipment (a tow truck) without authorisation, causing an accident that damaged a stationary tow truck on 28th December 2011. He sought a declaration that the termination was unlawful, compensation for future earnings, service pay, notice pay, costs and interest. The Respondent maintained that the termination was substantively and procedurally fair, having been preceded by a show cause letter, investigations and a disciplinary panel attended by the Claimant and his union representatives. The Court considered the sole issue of whether the termination was substantively justifiable and procedurally fair. On substance, it found the Respondent had failed to discharge its burden under Section 43(1) of the Employment Act: the key witness Ouma was not an eyewitness and did not testify in court, the safety investigator Itindi lacked the technical expertise to conclude the damage resulted from human intervention, her assistant Kirui was not called, and CCTV footage provided no useful evidence. On procedure, the Court found the failure to avail the disciplinary minutes to the Claimant for confirmation, unexplained delay in signing them, and absence of evidence that his representations were considered short-circuited the process under Section 41. The termination was declared unfair for want of substantive justification and procedural fairness. The Court awarded 8 months' salary in compensation and 2 months' notice pay, totalling Kshs. 910,360, directed payment of accrued leave days and facilitation of Provident Fund and NSSF dues, awarded costs to the Claimant, and dismissed the claims for service pay and unpleaded gratuity.

Key legal issues

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01

Substantive justification for termination

Holding

The Respondent failed to prove on a balance of probability that the Claimant operated the tow truck without authorisation; there was no valid reason for termination

Reasoning

The key eyewitness (Ouma) was not called in court and was not an eyewitness; Itindi lacked the technical expertise to conclude the damage was caused by human intervention; Kirui was not called to testify; CCTV footage provided no useful evidence. The employer thus failed to discharge the burden under Section 43(1).

p. 4
02

Procedural fairness of termination

Holding

Failure to avail disciplinary minutes to the Claimant and lack of evidence that his representations were considered rendered the process unfair

Reasoning

Although the Claimant and union representatives attended the hearing, he was not shown the minutes to confirm concurrence, the minutes were signed late without explanation, and there was no evidence his representations were given due consideration, short-circuiting the process under Section 41.

p. 5
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Remedies

Holding

Compensation of 8 months' salary and 2 months' notice pay awarded; service pay and gratuity dismissed

Reasoning

Having found the termination unfair both substantively and procedurally, the Court exercised its discretion under Section 49 to award 8 months' salary and notice pay per the termination letter, while declining service pay (membership of Provident Fund and NSSF) and dismissing unpleaded gratuity.

p. 5

Legal principles established

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  • An employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair
  • An employee who participates in a disciplinary process is entitled to read and sign the proceedings to confirm the minutes reflect a true record

Court orders

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  1. 1.Award of 8 months' salary in compensation for unfair termination of Kshs. 728,288
  2. 2.Award of 2 months' salary in lieu of notice of Kshs. 182,072 (total Kshs. 910,360)
  3. 3.Respondent to calculate and pay the Claimant accrued leave days as at 22nd June 2012
  4. 4.Respondent to facilitate payment of the Claimant's Provident Fund and updating of his NSSF Account
  5. 5.Respondent to pay the costs of the case
  6. 6.Award subject to statutory deductions under Section 49(2) of the Employment Act, 2007

Authorities

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Legislation

  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 49(2)

Cases cited (1)

  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    [2013] eKLR
Jurisdiction invoked
Employment Act, 2007 (unfair termination claim under Sections 41, 43, 45 and 49)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Howard Andrew Nyerere v Kenya Airways Limited [2014] KEELRC 902 (KLR)", Case Analysis (2014). Cause No 125 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/902/eng@2014-03-27

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