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ELRCPartially AllowedNot stated in the judgment (Employment and Labour Relations Cause, Nairobi)· [2015] KEELRC 1502 (KLR)

Maurice Kamwilwa v South Eastern University College [2015] KEELRC 1502 (KLR)

Employment and Labour Relations Court of Kenya
20 January 2015
JAJ. N. Abuodha
2,426 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that dismissing an employee without hearing his appeal was unfair, awarding him eight months' salary despite proof of misconduct.

What this practically means

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Executive summary

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The Claimant, a Senior Store Clerk earning Kshs.34,904 per month, challenged his dismissal from the Respondent institution as wrongful, null and void, seeking reinstatement or damages. The dismissal arose from allegations that on a Sunday in 2011 he received and signed for 13 tonnes of firewood against procurement procedures and without the authority of the acceptance committee. A disciplinary hearing was held on 2nd March 2012, resulting in a warning letter dated 7th March 2012 which surcharged him for the 13 tonnes and required him to change his attitude towards authority. He appealed as advised, but by a letter dated 16th March 2012 the Respondent acknowledged the appeal without reacting to its substance and dismissed him for refusing to accept the disciplinary committee's verdict. The Respondent justified the dismissal and argued the claim was premature for failure to exhaust internal mechanisms. The Court held that the hearing process up to the warning letter was procedural, but that dismissing the Claimant without hearing his appeal was procedurally unfair and contravened section 45 of the Employment Act, the Appeals Committee having abdicated its appellate role. The reasons for termination were proved, the Claimant having conceded receipt of the firewood without authority, but dismissal was not the most reasonable sanction given that the supplier was prequalified and the firewood was actually delivered and consumed. The Court awarded eight months' salary as compensation, salary in lieu of notice, terminal dues as if the contract had ended normally, a certificate of service under section 51, and costs of the suit to the Claimant, with computations to be done in liaison with the Deputy Registrar.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The disciplinary hearing up to the warning letter was procedural, but dismissing the Claimant without hearing his appeal over the surcharge decision was procedurally unfair and contravened section 45 of the Employment Act

Reasoning

The Court found the Senior Staff Disciplinary Committee accorded the Claimant a reasonable opportunity to defend himself and granted leave to appeal within 30 days. However, the Appeals Committee acknowledged the appeal without reacting to or rejecting the issues raised, and dismissed the Claimant for refusing to accept the verdict. This effectively denied him the right of appeal and contravened section 45 of the Employment Act.

p. 4
02

Validity of the reasons for termination

Holding

The reasons were proved since the Claimant conceded he accepted the firewood without the authority of the acceptance committee

Reasoning

Under section 43(1) of the Employment Act the employer must prove the reasons for termination. The Claimant admitted receiving and signing for the 13 tonnes of firewood without prior approval of the acceptance committee, though he justified his conduct by the exigencies of a Sunday delivery. The Court therefore answered the question whether the reasons were proved in the affirmative.

p. 4
03

Reasonableness of dismissal as a sanction

Holding

Dismissal was not the most reasonable option in the circumstances

Reasoning

The supplier was prequalified, 17 of the 30 contracted tonnes had previously been delivered, and the impugned 13 tonnes were actually delivered and consumed. The Court noted that probing whether there was fraud, whether the tonnage could be verified, or whether the matter could be resolved with the supplier before settling the bill might have strengthened or altered the case. Dismissal was therefore not the only reasonable option.

p. 5

Legal principles established

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  • The onus of proving the reason or reasons for termination lies on the employer, on a balance of probabilities, and the employer must additionally prove fair procedure
  • On a complaint of unfair termination, the burden of proving that an unfair dismissal has occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer
  • The test for assessing whether dismissal is proper is whether a reasonable employer, having the facts, would consider dismissal the only reasonable option
  • An appellate organ within an employer's internal dispute mechanism that dismisses an employee for refusing to accept a disciplinary verdict, without hearing the appeal, abdicates its role and violates the principle of fair hearing

Court orders

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  1. 1.Eight months' salary as compensation for unfair termination of services
  2. 2.Payment of salary in lieu of notice period for termination of service provided in the Claimant's contract of service
  3. 3.Payment of all terminal dues as if the contract of service had ended normally
  4. 4.The Respondent to issue the Claimant with a certificate of service in accordance with section 51 of the Employment Act
  5. 5.The Claimant to have costs of the suit
  6. 6.Parties to liaise with the Deputy Registrar of the Court for computations under (a), (b) and (c)

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 45
  • Employment Actsection 35(4)
  • Employment Actsection 44(4)(g)
  • Employment Actsection 46
  • Employment Actsection 51
  • Code of Conduct and Ethics for Public UniversitiesPart II section 7(i) (Legal Notice 170 of 2003)
  • Claimant's Terms of Servicesections 6(d)(i) and (iii)

Cases cited (3)

  • Obonganwan Mary Ntewo v. University of Calabar Teaching Hospital & Anor
    (2013) LPELR – 203329
  • Daniel Toroitich Arap Moi v. Mwangi Stephen Muriithi & Anor
    (2014) eKLR
  • Patrick Tenumah v. Owella Global Services Limited
    (2012)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim; no specific constitutional provision cited)

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, "Maurice Kamwilwa v South Eastern University College [2015] KEELRC 1502 (KLR)", Case Analysis (2015). Not stated in the judgment (Employment and Labour Relations Cause, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1502/eng@2015-01-20

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