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ELRCPartially AllowedCause No. 1705 of 2011· [2015] KEELRC 1047 (KLR)

Dickson Otieno v University Of Nairobi [2015] KEELRC 1047 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
25 May 2015
MMM. Mbaru
3,867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled the University of Nairobi fired an employee unfairly because it never proved its reasons or gave him a hearing.

What this practically means

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Executive summary

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The claimant, employed by the University of Nairobi from March 1987 as a permanent and pensionable employee last serving as Assistant Procurement Officer at the College of Biological and Physical Sciences, was terminated on 2nd August 2011 with immediate effect on grounds of acts of misconduct contrary to the Code of Conduct and Ethics for Public Universities, the Public Officer Ethics Act and his terms of service. He claimed the termination was without notice, hearing or specified reasons, noting that a disciplinary committee in May/June 2011 had absolved him. The Respondent relied on internal investigations revealing that a junior technician owned companies awarded tenders, alleging collusion with the claimant. The court found the reason for termination unproved: the investigation report of 27 July 2011 was implemented within seven days without any hearing, the claimant's appeal was unanswered, and the union was not informed. Applying sections 41, 43 and 47 of the Employment Act and the reasonableness standard from Sidumo, the court held the termination unfair. Reinstatement was declined as impracticable after three years. The court awarded six months' salary compensation (Ksh.324,924.00), three months' notice pay (Kshs.162,462.00), declared the termination unfair, directed that the claimant be treated as having retired for pension purposes under the University of Nairobi Pension Scheme, and awarded costs. The claim for long service pay of 25 years was declined for lack of evidential justification.

Key legal issues

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01

Whether the reason for termination was proved

Holding

The termination was unfair under section 43(1) of the Employment Act as the Respondent failed to prove the reason

Reasoning

The internal investigation report dated 27 July 2011 concluded against the Claimant without a hearing and was implemented within seven days. A prior disciplinary committee had absolved him. No due process under the CBA was followed and his appeal was unanswered. The reason for termination was therefore not proved.

p. 5
02

Whether the Claimant was entitled to notification and a hearing

Holding

Yes; section 41 applied and the termination was procedurally unfair

Reasoning

Even in summary dismissal, section 47(1) applies; the employer should have allowed the Claimant a hearing and a chance to be heard before taking action. Reducing summary dismissal into a normal termination without process was contrary to procedural requirements.

p. 6
03

Reasonableness standard in the decision to terminate

Holding

The Respondent failed to apply the reasonableness standard, rendering the termination unfair

Reasoning

Relying on Sidumo v Rustenburg Platinum Mines, the Court found the Respondent's decision to terminate failed the reasonableness standard. Damages were therefore assessed, awarding six months' salary compensation.

p. 6

Legal principles established

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  • In any claim arising out of termination of a contract, the employer must prove the reason or reasons for the termination, failing which the termination is unfair under section 45
  • An employee alleged to have committed misconduct is entitled to notification and a hearing under rules of natural justice before adverse action
  • Summary action even with payment in lieu of notice is invalid unless the employer first establishes evidence of good cause

Court orders

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  1. 1.Declaration that the termination of employment of the Claimant was unfair
  2. 2.Respondent to pay the Claimant Ksh.324,924.00 being six months' salary compensation
  3. 3.Respondent to pay 3 months' notice pay at Kshs.162,462.00
  4. 4.Claimant treated as having retired from employment for purposes of his pension entitlements as per the University of Nairobi Pension Scheme and any other lawful scheme
  5. 5.Respondent to pay costs of the cause
  6. 6.Payments subject to section 49(2) of the Employment Act

Authorities

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Legislation

  • Employment Actsections 41, 43, 44(4)(g), 45, 47(1), 49(2)
  • Public Officer Ethics Actsection 24(1)
  • Code of Conduct and Ethics for Public Universities (Legal Notice No. 170)section 10

Cases cited (2)

  • Ruth Murage versus The Standard Group Ltd
    Cause No. 1267 of 2011
  • Sidumo and Another versus Rustenburg Platinum Mines Limited and Others
    [2007] 28 ILJ 2405
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Dickson Otieno v University Of Nairobi [2015] KEELRC 1047 (KLR)", Case Analysis (2015). Cause No. 1705 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1047/eng@2015-05-25

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