Martin Mito Anyango & 2 others v Laikipia University College [2014] KEELRC 920 (KLR)
The bottom line
#A Kenyan employment court reinstated two sacked workers, ruling that punishing one employee more harshly than others for the same offence is unfair.
What this practically means
#Executive summary
#Key legal issues
#Discriminatory and disproportionate termination of the 1st claimant
Termination was unfair because the fraudulent-claims charge was similar to that of 24 retained employees and the shop-steward position was an aggravating factor not amounting to a valid reason; the second limb (false receipts) was never notified to him.
RW testified the shop steward role and higher integrity standards aggravated the punishment. Section 5 of the Employment Act obliges employers to eliminate discriminatory practices; the respondent failed to discharge the section 5(6) burden of showing no discrimination. The un-notified charge denied the claimant a chance to defend himself, and his timely appeal was wrongly rejected as time barred.
Validity of the 3rd claimant's termination for drunkenness
Termination was unfair; the claimant's defence that intoxication arose from paint used at work was never investigated, and he was entitled to reinstatement and full pay for the suspension period.
RW admitted the paint-intoxication defence was not investigated. The suspension exceeded the four months stipulated in the collective agreement without pay, and the position remained vacant. The reason for termination was therefore not valid under section 43, and reinstatement with full benefits from 19.12.2011 was warranted.
Fairness of the 2nd claimant's termination
Termination was fair; the unrebutted evidence showed he referred 9 employees to non-existent medical facilities.
As clinical officer he bore high trust and referred 9 employees to a clinic that did not exist in furtherance of fraudulent claims. The respondent's evidence stood unrebutted, establishing dishonesty inconsistent with the employment relationship, so only pension scheme dues were awarded.
Rejection of the claimants' appeals as time barred
The appeals were lodged within the 14-day period under clause 10 of the collective agreement and their rejection as time barred had no valid basis.
The claimants terminated on 19.12.2011 appealed on 20.12.2011 and 22.12.2011, and the 3rd claimant on 3.1.2012, all within 14 days. The rejection of these appeals as time barred was therefore unjustified and contributed to the finding of unfair termination.
Legal principles established
#- Imposing higher integrity standards on an employee because he is a shop steward is not a valid reason to aggravate punishment under section 46(c), (d) and (e) of the Employment Act
- Under sections 5(1), (2) and (6) of the Employment Act, an employer bears the burden of exculpating itself from claims of discriminatory termination
- Termination on a charge that was never notified to the employee breaches the right to be heard and renders the termination unfair
- Termination without a valid and investigated reason contravenes section 43 of the Employment Act
Court orders
#- 1.Declaration that the termination of the employment of the 1st and 3rd claimants was unfair
- 2.Declaration that the termination of the employment of the 2nd claimant was fair
- 3.The 1st and 3rd claimants reinstated with effect from 19.12.2011 with full salary, allowances and benefits per the prevailing collective agreement; the 3rd claimant entitled to full pay throughout his suspension
- 4.The 2nd claimant to be paid terminal dues only as per the respondent's staff pension scheme
- 5.Respondent to pay the amounts in (c) and (d) by 1.5.2014, failing which interest at court rates from 12.04.2013 till full payment
- 6.Claimants to calculate and file in court the computation and serve the respondent within 7 days for recording of figures
- 7.Respondent to pay costs of the suit
- 8.The 1st and 3rd claimants to report on duty at the respondent's vice-chancellor's office from 7.4.2014 and continue in employment until their respective retirement dates or unless otherwise lawfully terminated
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act 2007 and the applicable collective agreement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Mito Anyango & 2 others v Laikipia University College [2014] KEELRC 920 (KLR)", Case Analysis (2014). Cause No 84 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/920/eng@2014-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.