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ELRCAllowedApplication dated 18th July 2016 in the Memorandum of Claim· [2016] KEELRC 14 (KLR)

Agnes Ongadi v Kenya Electricity Transmission Company Limited [2016] KEELRC 14 (KLR)

Employment and Labour Relations Court
13 October 2016
MMM. Mbaru
6,165 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a boss who sacks or disciplines without following the legal process can be forced to reinstate the employee with full pay.

What this practically means

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Executive summary

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The Claimant, Chief Manager, Human Capital and Administration of the Respondent, moved the Court by Notice of Motion dated 18th July 2016 seeking conservatory orders restraining recruitment to her position, a stay of the disciplinary process, a stay of her suspension of 28th April 2016, and reinstatement. She alleged the disciplinary process violated the Constitution, the Employment Act, the State Corporations Act and the HR Manual; that the CEO and Board acted as complainant, investigator and judge; that she was denied a fair hearing; and that the Respondent declared her position redundant and advertised it mid-process, rendering the process a sham. The Respondent, through the affidavit of Managing Director Fernandes Barasa, maintained that clause L.3 of the HR Manual did not apply to her job group, that she was given a hearing, that the restructuring followed a new strategic plan approved by the Board, and that the application was premature. The Court framed four issues. It found the redundancy unjustified and restraining recruitment necessary to preserve section 40 Employment Act safeguards. It found the disciplinary process lacked fairness because the employer failed to produce records of the hearing and did not demonstrate compliance with section 41(1), and noted a contradiction in the CEO's affidavit on the applicable HR Manual clause. The timing of the restructuring notice, one day after the disciplinary hearing, disclosed bad faith. The Court declared the disciplinary process a nullity, lifted the suspension, reinstated the Claimant with effect from 17th October 2016, and awarded salaries and benefits from 1st July 2016. The application was allowed in its entirety.

Key legal issues

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01

Whether the Respondent could recruit to replace the Claimant's position while the redundancy was unjustified

Holding

Recruitment was restrained because the redundancy was unjustified and proceeding would negate section 40 Employment Act safeguards.

Reasoning

The restructuring declared the Claimant's office redundant and advertised the position the day after notices were issued, without demonstrated justification or objective criteria. Section 40 of the Employment Act is mandatory and requires notice, criteria and justification. Allowing competitive recruitment before justification of the redundancy would deprive the employee of statutory safeguards.

p. 7
02

Whether the disciplinary process lacked fairness and due process

Holding

The process lacked fairness and the resulting decision was clothed with illegality; the disciplinary process was declared unlawful and a nullity.

Reasoning

The employer failed to produce records of the disciplinary hearing of 13th July 2016 and failed to demonstrate adherence to section 41(1) of the Employment Act safeguards. There was also an admitted contradiction in the CEO's affidavit on whether clause L.3 of the HR Manual applied to the Claimant. The timing of the restructuring notice, one day after the hearing, showed a nexus and bad faith.

p. 9
03

Whether the indefinite suspension of 28th April 2016 should be stayed and the Claimant reinstated

Holding

The suspension was lifted and the Claimant reinstated with payment of salaries and benefits.

Reasoning

Since the disciplinary process founded on the show cause of 5th April 2016 was a nullity, the continued suspension lacked foundation. The Claimant also had a right not to be victimised for approaching the Court, per section 46(h) of the Employment Act. Reinstatement followed from the lifting of the suspension and stoppage of recruitment.

p. 10

Legal principles established

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  • The Court can intervene in an employer's administrative disciplinary process where fairness or due process has been offended, in exceptional cases, and where the disciplinary procedure is shrouded with illegalities the Court must intervene.
  • Section 40 of the Employment Act sets out mandatory procedures for redundancy; a redundancy must be justified on objective criteria before recruitment to replace affected employees can proceed.
  • Where a disciplinary process is contested, the employer bears the duty to produce the records of the disciplinary meeting; failure to demonstrate due process renders the process unfair and clothed with illegality.
  • A redundancy, restructuring or reorganisation commenced with the sole purpose of laying off specific employees is a sham and cannot be sanctioned by the court.

Court orders

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  1. 1.The Respondent is restrained from recruiting other persons for the positions held by the Claimant as Chief Manager, Human Capital and Administration or as Chief Manager, Human Resource and Administration
  2. 2.The disciplinary process against the Claimant commenced vide show cause dated 5th April 2016 is declared unlawful and a nullity
  3. 3.The suspension against the Claimant commencing 28th April 2016 is lifted
  4. 4.The Claimant shall resume her duties as allocated and assigned by her supervisor with the Respondent on 17th October 2016 at 8.30am
  5. 5.The Claimant shall be paid all salaries and benefits due to her office as held 1st July 2016

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 234; Article 165(5); Chapter Six
  • Employment Actsections 2, 10(5), 12, 40(1)(b), 40(1)(c), 41(1), 42(1), 45(2), 46(h)
  • State Corporations Actnot specified

Cases cited (15)

  • Mulwa Msanifu Kombo versus Kenya Airways Ltd
    null
  • Prof. Francis M Njeru versus Jomo Kenyatta University of Agriculture & Technology
    [2013] eKLR
  • Booysen versus the Minister of Safety and Security
    [2011] 1 BLLR
  • Joseph Mutuura Mbreia & Another versus Council of Jomo Kenyatta University of Agriculture & Technology [JKUAT]
    [2013] eKLR
  • Gregory O Owuoth versus Mumia Sugar Co. Ltd
    [2016] eKLR
  • Donald C Avude versus Kenya Forest Service
    [2015] eKLR
  • Shepard Homes versus Sandman
    [1970] 3 All ER 402
  • Jane I Khalachi versus Oxford University Press E. A Ltd
    Cause No.924 of 2010
  • Christopher Onyango & Others versus Heritage Insurance Company Limited
    Cause No.781 of 2015
  • Kenya Airways Limited versus Aviation and Allied Workers Union Kenya and Others
    [2014] eKLR
  • Aviation and Allied Workers Union & Others versus Kenya Airways Limited
    Cause No.1616 of 2014
  • Rebecca Ann Maina & 7 Others versus Jomo Kenyatta University of Agriculture and Technology
    null
  • Miguna Miguna versus The PS, Office of the Prime Minister & AG
    JR Case No.188 of 2011
  • Aviation and Allied Workers Union versus Kenya Airways Limited
    Cause No.324 of 2012
  • Multimedia University & 7 Others v Prof. Walter Oyawa & Prof. Gitile N Naituli
    Civil Application No.225 of 2013
Jurisdiction invoked
Article 162(2) of the Constitution read with Article 165(5) (Court's jurisdiction over employment and labour relations matters); Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Agnes Ongadi v Kenya Electricity Transmission Company Limited [2016] KEELRC 14 (KLR)", Case Analysis (2016). Application dated 18th July 2016 in the Memorandum of Claim. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/14/eng@2016-10-13

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