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ELRCPartially AllowedCause No. 1439 of 2010· [2015] KEELRC 7 (KLR)

Charles Oyunge Onkware v Telkom Kenya Limited [2015] KEELRC 7 (KLR)

Employment and Labour Relations Court of Kenya
16 December 2015
MMM. Mbaru
2,334 words in judgment
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The bottom line

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A Kenyan court found Telkom Kenya unfairly fired an employee without a proper hearing, awarding him about Kshs.1 million in compensation and costs.

What this practically means

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Executive summary

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The claimant, employed by Telkom Kenya Limited on 4th March 1991 as a Supplies Officer rising to a salary of Kshs.78,556.00, was terminated on 13th October 2009 on grounds of negligence and dishonesty. He was issued a notice on 6th October 2009 giving him 48 hours to respond, submitted a written defence on 9th October 2009, and was terminated four days later. He alleged the disciplinary and appeal processes departed from the respondent's Service Regulations, which required his grade to be heard by the Board, and sought reinstatement and terminal dues totaling Kshs.1,492,564.00. The respondent admitted the employment and the applicable Service Regulations but filed no witness statement, called no witness and filed no submissions. The court held that internal workplace policies are permissible under section 8 of the Employment Act but must conform to the statutory minimum; the disciplinary procedure in the respondent's policy was discretionary, but the hearing requirements of section 41 of the Employment Act were mandatory. Since the respondent did not demonstrate when or by whom the claimant's defence was assessed, the termination was procedurally unfair under section 45. Reinstatement was declined because over three years had lapsed since termination, a lapse the court attributed partly to the respondent's stalling, but was factored into compensation. The court awarded 12 months' salary as compensation (Kshs.942,672.00), one month's notice pay (Kshs.78,556.00), salary for 13 days (Kshs.39,041.00), interest on the notice pay and salary, costs of the suit, and a certificate of service to be issued within 7 days. Claims for leave pay and service pay were declined for want of particulars.

Key legal issues

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01

Whether internal disciplinary regulations were complied with and whether they displace statutory requirements

Holding

Internal regulations are permissible but discretionary and must conform to the law; failure to accord the claimant the mandatory statutory hearing amounted to procedural unfairness

Reasoning

The court held that internal policies are allowed under section 8 of the Employment Act to regulate the employment relationship, but where procedures may result in loss of employment they must meet the legal threshold. The schedule of delegated disciplinary powers was discretionary, not mandatory, but the statutory minimum under section 41 (hearing before termination) was mandatory. The claimant was given only 48 hours and a written defence, then terminated without a demonstrated hearing; the respondent called no evidence. This amounted to procedural unfairness under section 45.

p. 3
02

Whether reinstatement was an appropriate remedy

Holding

Reinstatement declined because over 3 years had elapsed since termination

Reasoning

Section 12 of the Employment and Labour Relations Court Act guides that reinstatement should be sparingly considered after 3 years from termination. The court took account of changes likely to have occurred within the respondent over the long period, a lapse partly attributable to the respondent's own delays in defending the suit. Reinstatement was refused but taken into account in arriving at the 12 months' compensation award.

p. 4
03

Burden of proving reasons for termination

Holding

The burden lies on the employer under section 43 of the Employment Act; the respondent failed to discharge it, not calling any witness

Reasoning

The claimant submitted, and the court accepted, that under section 43 the employer must prove reasons for termination, and that where such reasons do not exist the termination is unfair. The respondent filed no witness statement and called no witness, and did not file submissions, so the court could not assess the procedures undertaken after the claimant received the notice of misconduct and presumed the claimant's account was uncontroverted.

p. 3

Legal principles established

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  • Workplace disciplinary policies must conform to the statutory minimum in sections 41 and 45 of the Employment Act; an employer cannot go below the legal basics
  • Section 41 of the Employment Act imposes mandatory pre-termination hearing procedures
  • A termination without fair hearing is procedurally unfair under section 45
  • Notice pay is due in all cases of termination without due process
  • A certificate of service must be issued unconditionally to every employee upon termination

Court orders

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  1. 1.Declaration that the termination of employment was procedurally unfair
  2. 2.Compensation of Kshs.942,672.00 (12 months' salary)
  3. 3.Notice pay of Kshs.78,556.00
  4. 4.Salary for 13 days of Kshs.39,041.00
  5. 5.Interest on notice pay and salary for 13 days
  6. 6.Costs of the suit to the claimant
  7. 7.Certificate of service to be issued within 7 days

Authorities

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Legislation

  • Employment Actsection 8
  • Employment Actsection 35
  • Employment Actsection 41(1)
  • Employment Actsection 42(1)
  • Employment Actsection 43
  • Employment Actsection 45(1) and (2)
  • Employment Actsection 51
  • Employment and Labour Relations Court Actsection 12
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Charles Oyunge Onkware v Telkom Kenya Limited [2015] KEELRC 7 (KLR)", Case Analysis (2015). Cause No. 1439 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/7/eng@2015-12-16

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