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ELRCPartially AllowedCause No. 2402 of 2012· [2014] KEELRC 1309 (KLR)

Daniel Muchiri v Kenya Red Cross Society [2014] KEELRC 1309 (KLR)

Industrial Court of Kenya
7 October 2014
5,264 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that even when an employer has good reasons to fire an employee summarily, skipping the required hearing makes the dismissal unfair and compensable.

What this practically means

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Executive summary

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The Claimant, a medical doctor employed by the Respondent as Clinical Services Co-ordinator at Daadab on a fixed-term contract due to expire on 31st October 2012, was summarily dismissed on 17th September 2012 following a gathering at the Ifo camp on 17th August 2012. The Respondent alleged he allowed a rowdy party, compromised security by causing security lights to go off through generator overload, misused a Respondent vehicle to ferry alcohol, and played loud music. The Respondent issued a show cause letter on 27th August 2012, suspended the Claimant on 3rd September 2012, received his written response on 5th September, and dismissed him on 17th September after investigations by the HR Manager and an ad hoc committee. The court found that although there may have been grounds for discipline, the process was inherently unfair: no oral hearing was conducted, the investigation report was not shared with the Claimant contrary to the Respondent's own HR manual (clause 15.3.5), and he was sanctioned while still on suspension. Applying sections 35, 41, 44 and 49 of the Employment Act purposively, the court held that even summary dismissal requires the section 41 hearing rights, and that a termination with good cause but flawed procedure is procedurally unfair. The claim succeeded in part: a declaration of procedural unfairness, compensation of three months' gross salary (Kshs.660,000) in lieu of the 12 months sought, and an order for immediate issuance of a certificate of service under section 51. The 12-month compensation claim was rejected because the Claimant had moved to new employment. The Claimant was awarded 50% of his costs.

Key legal issues

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01

Whether the summary dismissal of the Claimant was procedurally fair

Holding

The dismissal was procedurally unfair because the Respondent did not follow the mandatory process under sections 35, 41 and 44 of the Employment Act nor its own HR manual: the Claimant was never given a hearing, never given a copy of the investigation report, and was sanctioned while still on suspension.

Reasoning

The court held that section 44 summary dismissal is qualified by the section 41 right to a hearing in the presence of a fellow employee. The Respondent suspended the Claimant, investigated via the HR Manager and an ad hoc committee, then dismissed him without recalling him to answer the allegations with evidence against him. The investigation report was never shared, breaching clause 15.3.5 of the HR manual and natural justice.

p. 7
02

Whether the expiry of the fixed-term contract (31st October 2012) negated compensation

Holding

No. The existence of an unfair labour practice entitles the Claimant to compensation under section 49 of the Employment Act notwithstanding the pending expiry of the contract.

Reasoning

The court noted the fixed-term contract was to expire on 31st October 2012, two weeks after the 17th September 2012 dismissal, but held that a finding of unfair labour practice makes compensation due regardless of the imminent expiry of the contract. It however reduced compensation to three months' salary because the Claimant had already obtained new employment.

p. 8
03

Entitlement to a certificate of service

Holding

A certificate of service is an unfettered right under section 51 of the Employment Act and must be issued forthwith.

Reasoning

The court found the Respondent had not issued a certificate of service upon dismissal. Since section 51 entitles every employee to one immediately upon termination or dismissal, the court ordered its immediate issuance as part of the remedies.

p. 8

Legal principles established

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  • Even where summary dismissal is warranted under section 44 of the Employment Act, the employee must first be accorded the hearing rights under section 41
  • A termination effected without following the mandatory procedural requirements of the Employment Act is procedurally unfair even if there is good cause for termination
  • An employee on suspension pending investigations must be recalled and heard before any sanction is imposed; sanctioning while on suspension is procedurally flawed
  • A certificate of service is an unfettered statutory right of every employee and must be issued immediately upon termination

Court orders

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  1. 1.A declaration that the Claimant's summary dismissal was procedurally unfair
  2. 2.An award of Kshs.660,000.00 (three months' gross salary as compensation)
  3. 3.A certificate of service to be issued to the Claimant forthwith
  4. 4.Claimant granted 50% of his costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 44 (including section 44(4)(c))
  • Employment Actsection 35
  • Employment Actsection 49
  • Employment Actsection 51

Cases cited (5)

  • Miriam Kyalo versus MFI Office Solutions Limited
    [2013] eKLR
  • Jackson Butiya versus EPK
    Cause No.335 of 2011
  • Frederic Owegi versus CFC Life Assurance Limited
    Cause 1001 of 2012
  • Collins Oroto Lukhale versus AAA Growers Limited
    Industrial Cause No.100 of 2012
  • Elizabeth Washeke and 62 Others versus Airtel (K) limited and Another
    Cause No 1972 of 2013
Jurisdiction invoked
Employment and labour relations jurisdiction under the Industrial Court (as established under the Constitution and the Industrial Court Act), Cause proceedings under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Daniel Muchiri v Kenya Red Cross Society [2014] KEELRC 1309 (KLR)", Case Analysis (2014). Cause No. 2402 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1309/eng@2014-10-07

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