Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI) v Board of Management Ilmotiook Secondary School [2015] KEELRC 275 (KLR)
The bottom line
#A Kenyan employer who sidelined an employee on compulsory leave without a fair hearing or termination letter was ordered to reinstate him and pay 18 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Striking out the Statement of General Defence filed without leave
The defence was struck out and expunged for want of leave under Rule 13(4) of the Industrial Court (Procedure) Rules, 2010, the respondent having filed out of time with no application for extension and a casual approach to court process.
The court noted the respondent was allowed seven days to respond but filed a Replying Affidavit on 19th August 2015 out of the directed timeline and never attended court on the hearing dates despite service. No application for extension of time to file the defence or other pleadings was made. The court characterized the respondent's conduct as careless, ignorant or arrogant, and struck out the defence for want of appropriate leave.
Whether the termination was wrongful, unfair and unlawful
The compulsory leave with unsubstantiated misconduct allegations, the denial of an opportunity to defend himself before the Board of Management, and the absence of any formal letter of termination amounted to a constructive termination that was wrongful, unfair and unlawful, contrary to Sections 43 and 45 of the Employment Act, 2007.
The grievant was sent on compulsory leave on 9th May 2014 citing misconduct, the leave was extended on 23rd June 2014, and at the Board of Management meeting of 27th September 2014 he was not afforded a chance to defend his case. The employer did not appear or mount a defence, so failed to prove valid reasons and fair procedure under Sections 43 and 45. As no termination letter existed, the court deemed it constructive termination.
Entitlement to reinstatement as a remedy for unfair termination
Reinstatement was granted, the court being guided by Section 49(4) of the Employment Act: the absence of a viable defence, the termination occurring within the three-year window, the low-calibre nature of the employment with no evidence of replacement, and the respondent's failure to counter the prayer for reinstatement.
The claimant made reinstatement the primary prayer. With no viable defence and the respondent at fault even at conciliation, and the termination occurring in 2014 within the three-year provision for considering reinstatement, practicability was established: the employment was of a low calibre and there was no evidence of replacement. The respondent did not counter the prayer despite ample opportunity.
Legal principles established
#- An employer bears the burden of proving the reasons for termination; failure to do so renders the termination unfair.
- Where an employee is sent on compulsory leave, never formally terminated by letter, and denied a fair hearing, the court may treat the situation as constructive termination which is wrongful, unfair and unlawful.
- A defence filed without the leave of court required by Rule 13(4) of the Industrial Court (Procedure) Rules, 2010 will be struck out.
Court orders
#- 1.A declaration that the compulsory leave imposed on the grievant by the respondent was unfair and unlawful
- 2.Reinstatement of the grievant to the employment of the respondent from the date of judgment without loss of seniority, continuity, benefits and privileges
- 3.The grievant to report back to work on 12th November 2015 at 800 hours
- 4.The respondent to pay the grievant unpaid salaries and allowances from May 2014 to date, being Ksh 12,260.00 x 18 months = Kshs.220,680.00
- 5.Costs of the suit to be borne by the respondent
- Jurisdiction invoked
- Employment Act, 2007 (Sections 43, 45, 49, 50, 51) and Industrial Court (Procedure) Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI) v Board of Management Ilmotiook Secondary School [2015] KEELRC 275 (KLR)", Case Analysis (2015). Notice of Motion dated 28th July 2015 with Statement of Claim of same date. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/275/eng@2015-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.