Peter Maroko Omondi v Pandya Memorial Hospital [2014] KEELRC 1245 (KLR)

Section 41 requires an employer contemplating termination on grounds of misconduct to inform the employee of the allegations and give a reasonable opportunity to respond. The Respondent's own witness admitted no disciplinary hearing was held, describing the meeting as counselling. The court held a professional HR practitioner should have let tempers cool and commenced a disciplinary process, and that fairness safeguards cannot be waived due to an employee's conduct. The Board's decision-making process was also unexplained.

The letter of dismissal gave no reasons. The court held that under the Employment Act, 2007 an employer must prove valid and fair reasons even where notice or payment in lieu is given; contract clauses permitting termination on notice without reasons are unlawful and invalid. The Respondent's asserted reasons (insubordination, a request to be dismissed, constructive dismissal, breakdown of trust) were advanced in an atmosphere of flare tempers and were not in accord with justice and equity.

Section 49(1)(c) permits compensation of up to twelve months gross wages considering the thirteen factors in section 49(4). The court noted the Claimant had above-average prospects of alternative employment (working locum) and that 11 months of the two-year contract remained. It awarded the equivalent of 4 months gross salary. The claim for lost income under the Industrial Court Act was refused as the 'any other appropriate relief' jurisdiction is ancillary only.