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ELRCPartially AllowedCause (interlocutory application; stated to apply also to Cause Nos. 302/2016 and 304/2016)· [2016] KEELRC 143 (KLR)

Lydia Temko Nandemu v Masinde Muliro University of Science and Technology [2016] KEELRC 143 (KLR)

Employment and Labour Relations Court
3 November 2016
MOMaureen Onyango
2,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer cannot suspend an employee beyond 21 days under the CBA, ordering the worker back with full salary going forward.

What this practically means

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Executive summary

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The applicant, an employee of Masinde Muliro University of Science & Technology, was suspended on half pay on 17th August 2016 following allegations that she stormed a meeting in the Vice Chancellor's Boardroom, disrupted it and threatened to assault the Acting Registrar Administration. She moved the court by notice of motion dated 10th October 2016 seeking lifting of the suspension and resumption of full salary pending hearing of the substantive claim, relying on clause 12.2 of the Collective Bargaining Agreement with UNTESU, which caps suspension at 21 days and mandates reinstatement if exceeded, save for agreed exceptions (union/management agreement, police investigations, or a case pending in court). The Respondent opposed, arguing that the prayers were the substantive reliefs in the claim, that it commenced the disciplinary process within 21 days, that the applicant failed to disclose and attend a disciplinary hearing, and that reinstatement before conclusion of the disciplinary process would be unjust. The court held that none of the exceptions to the 21-day limit applied, that the Respondent had itself confirmed investigations were concluded by its letter of 23rd August 2016, and that the only purpose of suspension under clause 12.2(i) is to facilitate investigations, not the disciplinary hearing. The court found the continued suspension violated clause 12.2, lifted the suspension forthwith and reinstated the applicant's salary from the date of lifting, but deferred access to the withheld salary until conclusion of the disciplinary hearing per clause 12.2(vii). The ruling applies also to Cause Nos. 302/2016 and 304/2016.

Key legal issues

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01

Whether continued suspension beyond 21 days breaches clause 12.2 of the applicable CBA

Holding

Yes - none of the exceptions (union/management agreement for more time, police investigation, case pending in court) applied, so the continued suspension violated clause 12.2 and the employee shall be reinstated.

Reasoning

Clause 12.2(iv) of the CBA caps suspension at 21 consecutive days unless the union and management agree to more time, investigations are by police, or the case is pending in court. None applied. The 21 days had lapsed, and the Respondent had itself indicated by letter of 23rd August 2016 that investigations were concluded. The disciplinary process not being concluded does not justify continued suspension, since suspension is only for investigations.

p. 4
02

Whether an employee must remain away from work pending conclusion of disciplinary proceedings

Holding

No - suspension is not punishment; investigations can continue while the applicant is at work.

Reasoning

The court stated that suspension is not punishment and an employee need not be away from work because a disciplinary case is pending. The Respondent did not justify why the charges required more than 21 days to investigate. The Respondent's argument that the disciplinary hearing had not been conducted was untenable because the sole purpose of suspension under clause 12.2(i) is investigation, not the hearing.

p. 5

Legal principles established

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  • Suspension under clause 12.2 of the CBA cannot exceed 21 days except in the stated exceptions, and the employee shall be reinstated if the period is exceeded.
  • The purpose of suspension is only to facilitate investigations, not the disciplinary hearing.
  • The Respondent is bound by the Collective Bargaining Agreement and cannot escape its provisions.

Court orders

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  1. 1.Lifting of the suspension of the Claimant forthwith
  2. 2.Reinstatement of the applicant's full monthly salary from the date of lifting of the suspension
  3. 3.Salary withheld during suspension deferred until conclusion of the disciplinary hearing as provided in Clause 12.2(vii)
  4. 4.Ruling and orders to apply to Cause Nos. 302/2016 and 304/2016

Authorities

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Legislation

  • Collective Bargaining Agreement (Respondent and Universities Non-Teaching Staff Union)Clause 12.2 (suspension)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute; interlocutory application under certificate of urgency

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, "Lydia Temko Nandemu v Masinde Muliro University of Science and Technology [2016] KEELRC 143 (KLR)", Case Analysis (2016). Cause (interlocutory application; stated to apply also to Cause Nos. 302/2016 and 304/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/143/eng@2016-11-03

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