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ELRCPartially AllowedCause 15 of 2015· [2015] KEELRC 243 (KLR)

Vincent Mboga Machogu v Vision Institute of Professionals Limited [2015] KEELRC 243 (KLR)

Employment and Labour Relations Court
13 November 2015
1,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, a lecturer at the respondent college, sued for terminal dues and compensation for unfair and wrongful termination of his employment on 3 June 2014, claiming Ksh 2,280,000, a certificate of service, costs and interest. The respondent maintained that it lawfully terminated his services for fundamental breach — absenteeism, lateness, rudeness and disrespect — after issuing a show cause letter to which he replied. The court found the employment relationship undisputed and framed two issues: whether the termination was wrongful, and whether the reliefs should be granted. It held that although admitted absenteeism and lateness amounted to valid and fair reasons for termination, the respondent could not rely on the contractual notice clause (clause 2.1) once it alleged misconduct; the mandatory fair-hearing procedure under section 41 of the Employment Act was not followed, rendering the termination unfair, a defect not curable by payment of one month's salary in lieu of notice. Under section 49 of the Employment Act, the claimant who elected damages over reinstatement was awarded three months' gross salary (Ksh 285,000) rather than the 24 months sought, because he contributed to his termination through misconduct. A certificate of service was ordered, as were costs and interest. The claim for severance pay was dismissed for lack of evidence and because the termination was not a redundancy.

Key legal issues

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01

Whether the termination was wrongful and unfair

Holding

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).

Reasoning

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.

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02

Whether the reasons for termination were valid and fair

Holding

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.

Reasoning

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.

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03

What compensation was payable

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 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. 2.Claimant to be issued with a certificate of service
  3. 3.Claimant awarded costs
  4. 4.Interest awarded on the decretal sum

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 45
  • Employment Actsection 44 (including section 44(4))
  • Employment Actsection 41
  • Employment Actsection 49(1), 49(1)(c), 49(3), 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair and wrongful termination)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.