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ELRCPartially AllowedCause (transferred from High Court, Kericho; number not stated in judgment)· [2015] KEELRC 814 (KLR)

Julius Bett v SBI International Holdings AG (Kenya) [2015] KEELRC 814 (KLR)

Employment and Labour Relations Court
26 June 2015
902 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 ruled a suspension letter isn't a fair hearing, so SBI's dismissal of Julius Bett was procedurally unfair and worth three months' pay.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Concrete Foreman from 5 October 2010, was suspended on 8 June 2011 on allegations of stealing cement and a balloon cylinder, ostensibly to allow investigations, and was then summarily dismissed on 14 June 2011 for theft. He sued for unlawful/wrongful dismissal before the High Court at Kericho; the matter was transferred to the Employment and Labour Relations Court by Sergon J in February 2014 and heard in Nakuru. The Court framed two issues: whether the termination was unfair, and the appropriate remedies. On procedural fairness, the Court held that section 41 of the Employment Act, 2007 mandatorily requires the employer to inform the employee of the allegations and afford a hearing, and that the onus of proving compliance rests on the employer. The Respondent called no witnesses and gave no evidence of any hearing; the suspension letter, which contemplated investigations, did not meet the section 41 threshold, and termination occurred before the suspension period ended. The Claimant's uncontroverted testimony was that no investigations were conducted. The Court found the termination procedurally unfair and declined to consider sections 43 and 45. On remedies, the Court exercised its discretion under section 49(4), noting the Claimant's short service, payment already received, and current employment with the County Government of Kericho, and awarded 3 months' gross wages (Kshs 102,270/-) instead of the 12 months claimed. The defamation claim was rejected for want of proof. The Claimant was awarded costs of Kshs 50,000/-.

Key legal issues

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01

Whether the termination was procedurally fair under section 41 of the Employment Act, 2007

Holding

The termination was procedurally unfair; the Respondent failed to prove that the Claimant was informed of the allegations and afforded a hearing

Reasoning

Section 41 makes procedural fairness mandatory: the employer must inform the employee of the allegations and afford an opportunity to make representations, with the right to be accompanied by a colleague or union representative. The onus lies on the employer. The Respondent called no witnesses and did not disclose who informed the Claimant of the allegations or when and where any hearing occurred. The suspension letter contemplated investigations yet termination occurred before the suspension period ended, and the Claimant's unchallenged testimony was that no investigations were carried out.

p. 2
02

Whether consideration of sections 43 and 45 (validity of reasons for termination) was necessary

Holding

Not necessary given the finding of procedural unfairness

Reasoning

Having found the termination procedurally unfair, the Court held it unnecessary to consider whether the Respondent proved the reasons for termination under section 43 or that the reasons were valid and fair under section 45.

p. 2
03

Appropriate compensation for unfair termination

Holding

3 months' gross wages, assessed at Kshs 102,270/-, in exercise of discretion under section 49(4)

Reasoning

Compensation is discretionary and capped at 12 months' gross wages, guided by section 49(4) factors. The Claimant served only about a year, had already been paid Kshs 50,960/-, and was currently employed by the County Government of Kericho. His gross wage per the April 2011 pay slip was Kshs 34,090/-, yielding Kshs 102,270/- for three months. His claim for 12 months multiplied by 5 lacked any laid legal basis.

p. 2

Legal principles established

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  • Procedural fairness before termination under section 41 of the Employment Act is mandatory; the employer bears the onus of proving it complied
  • A suspension letter issued to enable investigations does not satisfy the requirement to inform the employee of the allegations and afford a hearing under section 41
  • Procedural fairness may be effected through correspondence (show cause letters and responses), an oral face-to-face hearing, or a combination, with minutes kept for hearings

Court orders

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  1. 1.Declaration/finding that the termination of the Claimant's employment was procedurally unfair
  2. 2.Respondent to pay the Claimant compensation of 3 months gross wages, Kshs 102,270/-
  3. 3.Claimant to have costs of Kshs 50,000/-

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction following transfer order by Sergon J on 13 February 2014 (transfer from High Court, Kericho)

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, "Julius Bett v SBI International Holdings AG (Kenya) [2015] KEELRC 814 (KLR)", Case Analysis (2015). Cause (transferred from High Court, Kericho; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/814/eng@2015-06-26

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