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ELRCAllowedCause No. 1329 of 2011· [2015] KEELRC 462 (KLR)

Kenneth Gichuru v Board of Governors St. Teresa Girls Secondary School [2015] KEELRC 462 (KLR)

Employment and Labour Relations Court of Kenya
9 July 2015
MMM. Mbaru
2,994 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan school bursar unfairly dismissed without a hearing won compensation, showing employers must prove allegations and always hear employees before firing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent school as Bursar from 1st October 1990 and unionized under a CBA with the Ministry of Education, was sent on compulsory leave on 6th June 2008, suspended on 1st August 2008, and summarily dismissed on 11th December 2008 without, he alleged, any hearing before the Board. He claimed notice pay, 228 leave days' pay, balance of gratuity, salary arrears for 2007 and 2008, and 12 months' compensation. The Respondent, through its current Bursar as sole witness, alleged clerical errors, failure to hand over records, failure to submit academic certificates, and lack of qualifications per the Revised Scheme of Service, and asserted all terminal dues had been paid including Kshs.73,348.00 agreed with the union. The court held that section 41 of the Employment Act mandatorily requires a hearing before termination or summary dismissal, with union notification for unionized employees, a requirement supported by articles 41 and 47 of the Constitution. None of the nine allegations in the dismissal letter was proved; no audit report or Board minutes were produced, and the Respondent's witness confirmed pre-2008 records were in good order. Poor performance cannot justify dismissal absent prior support such as a performance improvement plan, and 18 years of service without any prior warning weighed against the employer. The union agreement waiving gratuity could not negate rights due to the employee. The dismissal was declared unfair; the Claimant was awarded compensation of Kshs.253,632.00, notice pay, 228 leave days' pay, balance of gratuity, salary arrears of Kshs.45,300.00, and costs.

Key legal issues

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01

Procedural fairness before summary dismissal

Holding

The summary dismissal was procedurally flawed as the Claimant was never given a hearing before the Board despite being told to await invitation, contrary to section 41 of the Employment Act.

Reasoning

Section 41(2) requires an employer to hear and consider an employee's representations before terminating or summarily dismissing them. Where the employee is unionized, the union should be notified so it may represent the employee. The court found the Claimant was sent on leave, suspended, and told to await a Board hearing, but instead received a summary dismissal letter without any hearing, show cause, or union involvement. This breached the mandatory procedure and the constitutional guarantees of fair labour practices and fair administrative action under articles 41 and 47.

p. 3
02

Substantive justification for the dismissal

Holding

None of the nine grounds listed in the dismissal letter was proved; the allegations of failure to keep proper accounts required audit reports or records which the Respondent did not avail.

Reasoning

The Respondent alleged lack of qualifications, failure to update records, tampering with files and other misconduct. The court noted the Respondent, as a corporate educational institution under the Ministry of Education with access to auditors, produced no audit report or proper records to prove the allegations. The Respondent's own witness confirmed records prior to 2008 were in good order and there were no Board minutes of any meeting discussing the Claimant. Consequently there were no valid and fair reasons under sections 43 and 45, and the sanction of summary dismissal was too harsh.

p. 4

Legal principles established

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  • An employer must hear and consider an employee's representations before termination or summary dismissal, and where the employee is unionized the union should be notified; the hearing requirement is mandatory and grounded in sections 41 and 45 of the Employment Act and articles 41 and 47 of the Constitution.
  • Using poor performance as a ground for dismissal without prior support, such as a performance improvement plan with targets and timelines, is an unfair labour practice.
  • A union cannot, by agreement with the employer, waive terminal benefits legally due to the employee.

Court orders

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  1. 1.A declaration that the Claimant was unfairly summarily dismissed from his employment
  2. 2.Compensation awarded at Kshs.253,632.00
  3. 3.Notice pay at kshs.63,408.00
  4. 4.228 leave days' pay at Kshs.185,341.00
  5. 5.Balance of gratuity due at Kshs.91,856.00
  6. 6.Underpayment for 2007 and 2008 all at Kshs.45,300.00
  7. 7.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 41(2)
  • Employment Actsection 44
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 45
  • Employment Actsection 43
  • Constitution of Kenyaarticle 41
  • Constitution of Kenyaarticle 47
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (articles 41 and 47 referred to in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Kenneth Gichuru v Board of Governors St. Teresa Girls Secondary School [2015] KEELRC 462 (KLR)", Case Analysis (2015). Cause No. 1329 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/462/eng@2015-07-09

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