Vincent Mboga Machogu v Vision Institute of Professionals Limited [2015] KEELRC 243 (KLR)
The bottom line
#A Kenyan college lawfully fired a lecturer for absenteeism, but still lost because it skipped the mandatory fair-hearing process before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was wrongful and unfair
The termination was procedurally unfair because the mandatory procedure under section 41 of the Employment Act was not followed, even though there was a valid reason (admitted absenteeism and lateness).
The employer cited misconduct as the reason for termination but instead followed clause 2.1 of the contract, allowing termination on one month's notice or pay in lieu. That clause was only available absent a misconduct accusation. Section 41 requires the employer, in mandatory terms, to explain the reasons and give the employee a chance to be heard with a fellow employee of his choice before termination. This was not done, so the termination was unfair on a balance of probability, and payment in lieu of notice could not cure the unfairness.
Whether the reasons for termination were valid and fair
Absence and lateness without permission were valid and fair reasons, but failure to respond to the show cause letter in time was not, as the claimant's explanation was unrebutted.
The claimant admitted lateness and absenteeism, making those valid and fair reasons for termination. However, his explanation for the delayed response to the show cause letter — that it was served on him late — was plausible and not rebutted by the defence witnesses, so it could not constitute a valid and fair reason for termination.
What compensation was payable
The claimant, who sought damages rather than reinstatement, was awarded 3 months' gross salary (Ksh 285,000), a certificate of service, costs and interest; severance pay was refused.
Section 49(3) allows reinstatement or re-engagement, but the claimant elected damages under section 49(1). Although he sought 24 months' salary, section 49(1)(c) caps compensation at 12 months' gross salary. Because the claimant contributed to his termination through misconduct and the employer's only fault was procedural, only 3 months' gross salary was awarded. Severance pay was dismissed for lack of evidence and because the termination was not a redundancy.
Legal principles established
#- Where an employer cites misconduct as the reason for termination, the contractual notice clause cannot be used as the procedure; the mandatory fair-hearing procedure under section 41 of the Employment Act must be followed.
- Unfairness of procedure cannot be cured by payment of salary in lieu of notice.
- Under section 45 of the Employment Act, termination is unfair unless the employer proves both a valid and fair reason and a fair procedure.
- An employee who contributes to termination through misconduct receives reduced compensation.
Court orders
#- 1.Judgment entered for the claimant awarding Ksh 285,000 as compensation for unfair termination (3 months' gross salary at Ksh 95,000 per month)
- 2.Claimant to be issued with a certificate of service
- 3.Claimant awarded costs
- 4.Interest awarded on the decretal sum
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair and wrongful termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vincent Mboga Machogu v Vision Institute of Professionals Limited [2015] KEELRC 243 (KLR)", Case Analysis (2015). Cause 15 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/243/eng@2015-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.