Barrack Otieno Anyiko v Telkom Kenya Limited [2015] KEELRC 557 (KLR)
The bottom line
#A Kenyan court ruled that an employee cannot be fired on suspicion alone, awarding a technician a full year's salary for unfair termination by Telkom Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to terminate the Claimant's services
The alleged gross misconduct (cutting data cables) was not proved; the Respondent acted on suspicion only, and no criminal charges were preferred.
The reason given was gross misconduct, i.e. theft of data cables, which if proved would fall under Section 44(4) of the Employment Act. However, investigations including police investigations produced no charges; security officers did not see the Claimant cut or carry away cables; and another person, Abraham Wata, had also accessed the floors. The allegation rested on suspicion, not established fact, and so could not warrant termination.
Whether due process was followed before termination
The disciplinary process was flawed: the Claimant received less than the 48 hours' notice required by the Respondent's HR policy, and the hearing proceeded although his witness was out of the country.
The hearing on 7/3/2012 lasted about 15 minutes, the Claimant was summoned the previous evening contrary to the HR Policy requirement of 48 hours, a fact the Respondent did not deny, and the hearing was not postponed despite the witness being abroad. These failures contravened Section 41 of the Employment Act, which requires the employer to explain the reasons and hear the employee's representations before termination.
Whether the Claimant is entitled to remedies
Termination was unfair under Section 45(1) & (2); the Claimant was awarded one month's notice pay and 12 months' compensation plus a certificate of service and costs.
Having found neither a valid reason nor fair procedure, the court concluded the termination was unfair and unjustified under Section 45(1) & (2) of the Employment Act. It awarded one month's salary in lieu of notice and the maximum 12 months' gross salary as compensation for unfair termination, together with a certificate of service and costs of the suit.
Legal principles established
#- An employer must prove both the validity of the reason for termination and that a fair procedure was followed; termination based on mere suspicion is unfair.
- A disciplinary hearing conducted without the 48-hour notice required by the employer's own HR policy, and which proceeds despite the employee's witness being unavailable, is flawed and offends Section 41 of the Employment Act.
Court orders
#- 1.One month salary in lieu of notice of Kshs. 53,268
- 2.Twelve months' salary as compensation for unlawful termination of Kshs. 639,216 (53,268 x 12), totalling Kshs. 692,484
- 3.Claimant to be issued with a Certificate of Service
- 4.Respondent to meet costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Employment Act 2007 Sections 41, 44(4), 45(1) & (2) applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barrack Otieno Anyiko v Telkom Kenya Limited [2015] KEELRC 557 (KLR)", Case Analysis (2015). Cause No. 2361 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/557/eng@2015-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.