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ELRCDismissedCause No 681 of 2011· [2015] KEELRC 540 (KLR)

Nelson Moreka Mauga v Board of Governors Kenyanya Mixed Secondary School [2015] KEELRC 540 (KLR)

Employment and Labour Relations Court of Kenya
28 August 2015
MNMathews N. Nduma
1,741 words in judgment
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The bottom line

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A Kenyan court dismissed a teacher's dismissal claim because he skipped his own disciplinary hearings and sued before his employment was actually terminated.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent Board of Governors from 24 January 1996 and appointed Accounts Clerk on 1 August 2006, claimed he was constructively dismissed after being suspended by a letter dated 6 January 2011 that gave no reasons. He sought notice pay, salaries for January and February 2011, salary underpayment from 1996 to 2011, house allowance, gratuity, medical cover contributions, unpaid leave allowance, Kshs 150,900 in salary arrears, twelve months' compensation for unlawful dismissal, a certificate of service, costs and interest. The Respondent admitted employing him as Accounts Clerk but maintained he was justifiably suspended to allow impartial investigation into allegations of financial mismanagement, gross misconduct and insubordination, that his employment had never been terminated, and that he ignored several invitations to appear before the Board and an audit team. The Respondent also denied owing him any monies, producing payment vouchers. The court framed three issues: whether the Claimant was terminated or refused to honour investigation invitations; whether he was owed any payment; and what remedy was due. It found the Claimant was suspended pending investigations and failed to attend three Board meetings, choosing instead to file suit on 4 May 2011. Holding that the employment was never terminated and that the suit was premised on falsehoods and filed prematurely, the court dismissed the constructive dismissal claim and dismissed the entire suit with costs to the Respondent.

Key legal issues

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01

Whether the Claimant was terminated or constructively dismissed

Holding

The Claimant was only suspended pending investigations into alleged financial misconduct; his employment was not terminated and the constructive dismissal claim is dismissed.

Reasoning

The Claimant was suspended by letter dated 6 January 2011 pending investigation of alleged gross financial misconduct. He was invited to three Board meetings (22 February 2011, 22 March 2011 and 22 April 2011) but failed to attend, instead instructing advocates and filing suit on 4 May 2011 before any disciplinary process concluded. The court found the employment relationship remained undetermined and the suit based on a false premise.

p. 3
02

Whether the Claimant is owed the monies claimed

Holding

The claim for salary arrears and other dues was not credible; RW1's evidence supported by payment vouchers showed the Claimant had been fully paid.

Reasoning

The court found the Claimant's evidence of being owed Kshs 150,900 in salary arrears unconvincing. RW1, the head teacher, conducted his own investigations and concluded the Claimant had been fully paid, producing vouchers showing payments to the Claimant. The vouchers were preferred over the Claimant's bare claim, and the question of any outstanding monies was to be resolved after the disciplinary process is concluded.

p. 4

Legal principles established

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  • An employee suspended pending investigations who refuses to honour summons to account for his conduct cannot obtain the court's aid; a suit claiming constructive dismissal before the employment relationship is determined is premature.

Court orders

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  1. 1.The claim for constructive dismissal is dismissed.
  2. 2.The suit, having been filed prematurely, is dismissed with costs to the Respondent.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Cause No 681 of 2011)

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, "Nelson Moreka Mauga v Board of Governors Kenyanya Mixed Secondary School [2015] KEELRC 540 (KLR)", Case Analysis (2015). Cause No 681 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/540/eng@2015-08-28

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