Universities Non Teaching Staff Union v University of Nairobi [2015] KEELRC 217 (KLR)
The bottom line
#Kenya's Employment Court ruled the University of Nairobi unfairly fired a cashier, awarding him over Kshs 535,000 but not his old job back.
What this practically means
#Executive summary
#Key legal issues
#Valid reason for termination
The Respondent failed to prove the under-banking and non-banking of funds were attributable to the grievant to the exclusion of his supervisor and assistant; no valid reason was established under sections 43(1) and 47(5) of the Employment Act
The grievant shared responsibility for cash handling with his supervisor and subordinate. The audit findings rested solely on RW1, whose credibility was doubted owing to animosity between her and the grievant. A colleague irregularly banked funds in the grievant's name without authority, and surcharging the grievant without sound basis, followed by termination, amounted to double jeopardy.
Fair procedure
Although the grievant was heard, the procedure was deficient: no witnesses were called, the internal auditor who authored the charges sat on the committee, the grievant was denied union representation contrary to the CBA and section 41, and suspension without pay breached the CBA
The CBA in force before termination entitled the grievant to union representation and half-pay suspension. Denial of representation violated section 41 of the Employment Act. The auditor who unearthed the shortage sat on the disciplinary committee instead of testifying, casting doubt on the fairness of the hearing.
Remedies
Reinstatement refused given lapse of time and diminished trust in a position of utmost trust; maximum compensation of 12 months' salary awarded under section 49(1)(c) as read with 49(4), together with notice pay, salary arrears for the suspension period and refund of the surcharge
Eleven years had elapsed since termination, the Respondent's structure may have changed, and the grievant held a position of utmost trust. Although the termination was wrongful, reinstatement was impractical. The grievant lost his livelihood prematurely, was not paid terminal benefits and was suspended without pay, justifying maximum compensation of 12 months' salary.
Legal principles established
#- An employer must demonstrate on a balance of probability that the misconduct constituting the reason for termination was attributable to the employee, per sections 43(1) and 47(5) of the Employment Act, 2007
- An employee must be allowed to be accompanied at a disciplinary hearing by a fellow employee of choice or a union representative as required by section 41 of the Employment Act and the CBA
- Suspension on terms inconsistent with the CBA (unpaid rather than half pay beyond 30 days) renders the procedure unfair
- Reinstatement is not available after expiry of three years from termination under the Employment and Labour Relations Act, 2011
Court orders
#- 1.Reinstatement denied
- 2.Compensation of 12 months' gross salary for wrongful and unfair termination in the sum of Kshs 308,320
- 3.One month salary in lieu of notice in the sum of Kshs 25,693.35
- 4.Salary arrears for the suspension period (13th June 2006 to 27th November 2006) in the sum of Kshs 139,600.50
- 5.Refund of wrongful surcharge in the sum of Kshs 62,288.00
- 6.Total award of Kshs 535,901.88 with interest at court rates from the date of filing suit till payment in full
- 7.Respondent to pay the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Act, 2011; dispute reported to the Minister of Labour with certificate of unresolved dispute issued
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Universities Non Teaching Staff Union v University of Nairobi [2015] KEELRC 217 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/217/eng@2015-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.