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ELRCPartially AllowedNot stated in the judgment as provided· [2014] KEELRC 1082 (KLR)

Antony Wanjau Kilonzo v Moi Teaching and Referral Hospital [2014] KEELRC 1082 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
20 June 2014
BOByram Ongaya
1,297 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan hospital unfairly fired a pharmacist for drug theft he could not have committed, and must pay him a year's salary.

What this practically means

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Executive summary

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The claimant, a Pharmacy Technologist employed by the respondent hospital, was interdicted by letter dated 23.11.2010 on allegations of theft of oncology drugs (gemcitebine), careless performance of work and conduct to the detriment of his employer. After a staff disciplinary advisory committee hearing he was terminated by letter dated 14.02.2011 effective 14.01.2011. His appeal against termination received no response. He sued seeking a declaration that the termination was unlawful, reinstatement under section 15 of the Labour Institutions Act, lost allowances and benefits, general damages and costs. The court framed two issues: whether the termination was unfair, and whether the claimant was entitled to the prayers sought. On the evidence, the claimant's signed stock take of 1.11.2010 showed the drugs present before he went on leave, and the respondent's own witnesses confirmed proper documentation of drug movements and that the claimant was away on leave when the drugs allegedly disappeared. The court found no evidence linking the claimant to the disappearance and held the termination unfair under section 43(1) of the Employment Act, 2007. On remedies, the reinstatement claim was treated as abandoned after the claimant's own submission that the parties' relationship was hostile. The court applied its prior decision in the Timber Treatment case to award the withheld half basic salary for the interdiction period (Kshs.12,141.50) and, under section 49(1)(c), 12 months' gross salaries (Kshs.405,396.00), totalling Kshs.417,537.50, payable by 1.08.2014 with interest in default, plus costs of the suit.

Key legal issues

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01

Validity of the reason for termination

Holding

The termination was unfair under section 43(1) of the Employment Act, 2007 because the respondent failed to establish a valid reason.

Reasoning

The claimant's signed stock take of 1.11.2010 showed the oncology drugs (gemcitebine) present in the pharmacy before he proceeded on leave. RW1 confirmed proper documentation of drug movements, and RW2 confirmed the claimant returned on 8.11.2010 while on leave, so any theft would have occurred when he was away. There was therefore no evidence linking the claimant to the disappearance of the drugs, and the alleged reasons in the show-cause letter were not established to exist at the time of termination.

p. 2
02

Remedies for unfair termination

Holding

Declaration of unfair termination granted; reinstatement claim treated as abandoned; withheld half basic salary for the interdiction period and 12 months' gross salary as compensation awarded.

Reasoning

Having found the termination unfair, the court declared it unfair as prayed. The claimant's submission that the relationship was hostile led the court to find the reinstatement claim abandoned. Applying its own prior decision in the Timber Treatment case, the court awarded the withheld half basic salary for the interdiction period. Considering that the claimant did not contribute to the termination and had expectations of long service on permanent and pensionable terms, the court awarded 12 months' gross salaries under section 49(1)(c).

p. 3

Legal principles established

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  • An employer must establish that the reason for termination existed and was valid at the time of termination; failure to link the employee to the alleged misconduct renders the termination unfair under section 43(1) of the Employment Act
  • Where a suspension or termination is later found unlawful or unfair, the employee is entitled at least to partial reinstatement, i.e. salaries due for the period pending determination, unless the employee took other gainful employment or failed to exculpate himself

Court orders

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  1. 1.A declaration that the termination of the claimant's employment by the respondent was unfair
  2. 2.The respondent to pay the claimant Kshs.417,537.50 by 1.08.2014, in default, interest at court rates from the date of judgment till full payment
  3. 3.The respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 49(1)(c)
  • Labour Institutions Act No. 12 of 2007section 15

Cases cited (1)

  • Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers -Versus- Timber Treatment International Limited
    [2013]eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 and the Labour Institutions Act No. 12 of 2007 (specific constitutional provision not stated in the judgment)

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, "Antony Wanjau Kilonzo v Moi Teaching and Referral Hospital [2014] KEELRC 1082 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1082/eng@2014-06-20

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