Julius Bett v SBI International Holdings AG (Kenya) [2015] KEELRC 814 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair under section 41 of the Employment Act, 2007
The termination was procedurally unfair; the Respondent failed to prove that the Claimant was informed of the allegations and afforded a hearing
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.
Whether consideration of sections 43 and 45 (validity of reasons for termination) was necessary
Not necessary given the finding of procedural unfairness
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.
Appropriate compensation for unfair termination
3 months' gross wages, assessed at Kshs 102,270/-, in exercise of discretion under section 49(4)
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.
Legal principles established
#- 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
#- 1.Declaration/finding that the termination of the Claimant's employment was procedurally unfair
- 2.Respondent to pay the Claimant compensation of 3 months gross wages, Kshs 102,270/-
- 3.Claimant to have costs of Kshs 50,000/-
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.