James P. Sawe v Attorney General [2015] KEELRC 1048 (KLR)
The bottom line
#Kenya's Employment Court ruled a public service doctor's dismissal was nullity because he was never heard, awarding him millions in back pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimant was substantively and procedurally unfair
The dismissal was substantively and procedurally unfair; the dismissal was declared a nullity
The Respondent failed to demonstrate what was done after Ministerial Advisory Committee 2 reinstated the Claimant conditionally. Ministerial Advisory Committee 3 revisited matters already settled by MAC 1 and 2 without separating resolved issues, amounting to double jeopardy and victimisation. The Claimant was not invited to defend himself at MAC 3, and the dismissal of 2005 was only communicated in August 2009. The PSC decided the appeal on the record without hearing the Claimant. Failure to comply with sections 41, 43 and 47 of the Employment Act, mandatory steps, rendered the dismissal a nullity.
Whether the Claimant was entitled to notice pay, salaries and allowances, and compensation
Notice pay of one month's salary, salaries and allowances for the 64 months up to the date of dismissal letter (29 August 2009), and compensation of 6 months' pay were awarded
Upon a finding of unfair dismissal the Claimant was entitled to terminal dues. Notice pay was justified under sections 35 and 36 of the Employment Act. The court held there was no merit in back-tracking the dismissal to 1 June 1999 and awarded salaries and allowances only up to the date of the dismissal letter of 29 August 2009, being 64 months of unpaid remuneration. Compensation for unfair dismissal was assessed at 6 months' pay.
Whether the recovery proceedings for overpaid salaries initiated through the Kenya Anti-Corruption Commission should stand
The recovery proceedings were set aside as they flowed from an unfair and eschewed disciplinary process
Because the dismissal was found unfair and the process leading to it procedurally flawed, the resultant steps to recover salaries paid to the Claimant had no basis. The referral to the Kenya Anti-Corruption Commission for recovery of monies owed flowed from an eschewed process and lacked justification.
Whether the requirements of Rule 4(e) of the Industrial Court (Procedure) Rules were met by the parties
Parties are required to set out in pleadings or submissions any principle, policy, convention, law or management practice relied on
The court flagged Rule 4(e) of the Industrial Court (Procedure) Rules requiring parties to state in advance the principles, policies, conventions or laws relied upon, so that the other party and the court know the basis of the claim or defence well before submissions. This procedure differs from ordinary civil procedure and ensures fairness in the hearing of employment disputes.
Legal principles established
#- The burden of proving that an unfair termination or wrongful dismissal occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer
- Dismissals under section 44 of the Employment Act for gross misconduct are still subject to the procedural fairness requirements of section 41, and failure to afford a hearing renders a dismissal a nullity
- Revisiting matters already resolved by prior disciplinary committees without separating settled issues amounts to double jeopardy and victimisation in labour relations
- Where the rules of the Public Service Commission disciplinary process contradict the Employment Act's requirements of hearing, the resulting process is a nullity with no legal standing
Court orders
#- 1.Notice pay at Kshs.100,840.00
- 2.Salaries and allowances due at Kshs.6,050,400.00
- 3.Compensation at Kshs.606,040.00
- 4.The Claimant shall be awarded costs at 50% percent
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (implied from the court's jurisdiction over unfair termination claims under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James P. Sawe v Attorney General [2015] KEELRC 1048 (KLR)", Case Analysis (2015). Cause No. 1513 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1048/eng@2015-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.