Daniel Muchiri v Kenya Red Cross Society [2014] KEELRC 1309 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimant was procedurally fair
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.
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.
Whether the expiry of the fixed-term contract (31st October 2012) negated compensation
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.
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.
Entitlement to a certificate of service
A certificate of service is an unfettered right under section 51 of the Employment Act and must be issued forthwith.
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimant's summary dismissal was procedurally unfair
- 2.An award of Kshs.660,000.00 (three months' gross salary as compensation)
- 3.A certificate of service to be issued to the Claimant forthwith
- 4.Claimant granted 50% of his costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John Jaoko Othino v Intrahealth International [2022] KEELRC 327 (KLR)[2022] KEELRC 327 (KLR)4 Apr 2022
Cite this brief
#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.