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ELRCPartially AllowedCause No 542 of 2012· [2015] KEELRC 635 (KLR)

Elvis K. Likobele v Kenya Airports Authority [2015] KEELRC 635 (KLR)

Employment and Labour Relations Court
21 July 2015
4,957 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld KAA's dismissal of a security warden for sexually harassing a passenger, awarding him only one month's unpaid salary.

What this practically means

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Executive summary

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The Claimant, a security warden employed by the Respondent (Kenya Airports Authority) from January 2007, was summarily dismissed following a complaint by Tamasha Afrika Limited that a Japanese passenger had been hugged and kissed without her consent at JKIA on 4th June 2011. He sued for future earnings of Kshs. 27,188,741, three months' notice pay, severance pay, interest and costs, contending the dismissal was unproven, procedurally flawed and void. The Respondent defended the dismissal as lawful and fair, having investigated the complaint, subjected the Claimant to a show-cause process and a disciplinary committee with union representation, and paid terminal dues of Kshs. 163,450. The tour guide John Nesta Francis Mwalago testified the passenger was distraught and reported being hugged and kissed without consent, while the HR manager admitted the complaint email lacked details and that supervisors failed to record the incident in the occurrence book, suggesting a cover-up. The court found procedural fairness was accorded, and on a balance of probabilities the Claimant was guilty of sexual harassment, contravening Section 6 of the Employment Act and the dignity rights under Article 28 of the Constitution. However, the dismissal was held effective on 29th November 2011 when the letter issued, not 3rd October 2011, entitling the Claimant to November 2011 salary. The suit was dismissed with no order as to costs, save for that one month's payment.

Key legal issues

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01

Substantive fairness of the summary dismissal for sexual harassment

Holding

The dismissal was justified; on a balance of probabilities the Claimant sexually harassed the passenger

Reasoning

The tour guide John Nesta testified the passenger said she was hugged and kissed without her consent. The Claimant's account of a mere handshake was found untoward - the court questioned why a handshake was necessary. The failure by the supervisor and Duty Security Officer to record the incident in the occurrence book corroborated a cover-up. The Tamasha Afrika complaint stirred investigations that established the misconduct. The conduct contravened Section 6 of the Employment Act read with Article 28 on dignity.

p. 7
02

Procedural fairness of the dismissal

Holding

The Claimant was accorded procedural fairness under Section 41 of the Employment Act

Reasoning

He was issued with a notice to show cause bearing the accusations, responded in writing despite complaining of short notice, appeared before a disciplinary committee, was represented by union officials, was dismissed and appealed, and the appeal was considered and dismissal upheld. Procedural fairness was therefore adhered to as far as the evidence shows.

p. 6
03

Effective date of dismissal and salary for the interim period

Holding

The dismissal, being communicated on 29th November 2011 but stated effective 3rd October 2011, was irregular; the Claimant is owed November 2011 salary

Reasoning

The court noted the dismissal was stated effective from 3rd October 2011 while the letter was issued on 29th November 2011, which was 'not as it ought to be'. The Claimant remained in employment until the dismissal letter issued, entitling him to November 2011 salary. This was the only relief granted.

p. 7

Legal principles established

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  • A summary dismissal for gross misconduct need only be proved on a balance of probabilities, not beyond reasonable doubt
  • A dismissal takes effect on the date the dismissal letter is issued, and salary is due up to that date

Court orders

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  1. 1.Suit dismissed
  2. 2.Respondent to process and pay the Claimant's salary for November 2011 as the dismissal was effective 29th November 2011
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 6
  • Constitution of KenyaArticle 28

Cases cited (3)

  • Ayub Akoth Nyawara v Ashut Engineers Limited
  • Shankar Saklani v DHL Global Forwarding (K) Ltd
  • Simon Patrice Matianyi v G4S Security Services
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Elvis K. Likobele v Kenya Airports Authority [2015] KEELRC 635 (KLR)", Case Analysis (2015). Cause No 542 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/635/eng@2015-07-21

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