Pamela K. Butalanyi v University Council for the Kenya Polytechnic University College [2015] KEELRC 1286 (KLR)
The bottom line
#Kenya's Industrial Court ruled an employer cannot dismiss an employee on study leave without a fair hearing, and ordered her reinstatement with full back pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to summarily dismiss the Claimant under Section 44(4)(a) of the Employment Act 2007
Section 44(4)(a) was inapplicable; the Claimant was on granted and extended study leave and had lawful cause for her absence; the dismissal lacked both substantive justification and procedural fairness
The Claimant's study leave, granted in 2004 and extended by the Respondent to December 2009, meant she was not absent without leave or lawful cause. Her return depended on completing her Government-sponsored PhD and on an air ticket, neither of which was available. The Respondent's commands to return without completing her study were not lawful and proper, and summary dismissal remains subject to Sections 41, 43 and 45.
Whether the Claimant was accorded procedural fairness before summary dismissal
Procedural justice was absent; the 7-day show-cause letter was impossible to comply with from the UK and no hearing, even by Skype, was ever offered
The letter requiring the Claimant to show cause within 7 days was unreasonable given postal delays between Kenya and the UK. After she failed to respond, no attempt was made to hear her, even through Skype, and her appeal for reinstatement was dismissed without any hearing or consultation. Substantive justice was likewise lacking because there was no valid reason for termination.
Whether reinstatement was an available and appropriate remedy
Reinstatement was allowed, being available under the repealed Section 15 of the Labour Institutions Act 2007 and Section 49 of the Employment Act 2007, since no 3-year time limit applied at the date of termination
The dismissal took effect on 15th July 2009, before the Industrial Court Act 2011 introduced the 3-year time limit on reinstatement. The Claimant completed her PhD through her own resources after being abandoned by two bungling Government institutions; denying her return would unjustly deprive the nation of the benefit of its investment in her capacity building.
Whether monetary claims for study-related costs and per diem lay against the Respondent
Costs of the study (rent, air tickets, living expenses, luggage, per diem) were not claimable from the Respondent, whose role was limited to granting study leave; they could be pursued against the DPM
The letter of 30th November 2004 was emphatic that all costs of the Claimant's study would be met by the DPM, the sponsoring entity. The Employer was restricted to affording study leave. Per diem applies to employees actively working out of station, not those on study leave. Had costs been incurred under the disciplinary process itself, they would have been claimable from the Respondent.
Legal principles established
#- Summary dismissal is a form of termination and must satisfy the requirements of fair termination under Sections 41, 43 and 45 of the Employment Act 2007
- Termination-at-will has no place in Kenyan employment law
- An employee's duty to obey employer commands extends only to lawful and proper commands
- Employment remedies must be proportionate to the injury sustained and not aimed at unjust enrichment
- Absence from work with lawful cause, such as completing Government-sponsored study, does not attract summary dismissal under Section 44(4)(a)
Court orders
#- 1.A declaration that the Summary Dismissal of the Claimant was unfair
- 2.The Respondent shall reinstate the Claimant to her previous position with effect from 1st June 2015, without loss of salaries, benefits and privileges; back pay to be calculated from 1st August 2009
- 3.In the alternative, the Respondent shall pay the Claimant 1 month salary in lieu of notice at Kshs. 54,592 and 12 months' salary in compensation at Kshs. 655,104 (total Kshs. 709,696)
- 4.The Claimant must communicate her option to the Respondent within 30 days of the delivery of the Award
- 5.Costs in either case to the Claimant
- 6.No order on the interest
- Jurisdiction invoked
- Industrial Court Act 2011 and the Labour Institutions Act (Section 15), read with Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joyce Ngina Simitu v Stephen O. Mallowah & 2 others [2019] KEELRC 1375 (KLR)[2019] KEELRC 1375 (KLR)14 Jun 2019
- Evans Magero Chuma v Riley Falcon Security Services Limited [2018] KEELRC 2078 (KLR)[2018] KEELRC 2078 (KLR)3 May 2018
Cite this brief
#Cite this brief
Caselaw, "Pamela K. Butalanyi v University Council for the Kenya Polytechnic University College [2015] KEELRC 1286 (KLR)", Case Analysis (2015). Cause Number 1601 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1286/eng@2015-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.