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ELRCPartially AllowedNot stated in judgment (Amended Memorandum of Claim filed 6.7.2015; criminal proceedings referenced as Criminal Case No. 377 of 2011)· [2016] KEELRC 222 (KLR)

Pascal Mwamburi Mwandawiro v Board of Management St. Mary’s High School & 2 others [2016] KEELRC 222 (KLR)

Employment and Labour Relations Court
9 December 2016
1,819 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 a school guard's dismissal unfair because he wasn't warned it was a disciplinary hearing or told he could bring someone, awarding him Kshs 149,760.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent since February 2001, was dismissed on 27.7.2012 following the theft of a power steering pump from the school bus on the night of 25.8.2011 when he absented himself from duty. He had been suspended by letter dated 27.8.2011, charged in Criminal Case No. 377 of 2011, acquitted, and then invited to a disciplinary meeting by letter dated 25.7.2012, after which he was dismissed the same day without payment of dues. The claim against the 2nd and 3rd respondents was withdrawn before trial. The court framed two issues: whether the dismissal was unlawful and whether the reliefs sought should issue. It found the respondent had a valid and fair reason for dismissal, since absence without permission is gross misconduct under section 44(4)(a) of the Employment Act, and an acquittal in criminal proceedings does not immunise an employee from internal discipline. However, the invitation letter neither disclosed that the meeting was a disciplinary hearing nor advised the claimant of his right under section 41 to be accompanied by a fellow employee or union representative, so the respondent failed to prove a fair procedure. The termination was declared unfair and unlawful. The court awarded three months' salary in lieu of notice (Kshs. 24,960), three months' salary as compensation (Kshs. 24,960) because the claimant contributed to his termination by his misconduct, and 12 months' salary for the suspension period (Kshs. 99,840), holding that suspension does not terminate employment. Leave claims for 2005 (statute barred) and 2011-2012 (claimant not working) were declined. Judgment was entered for the claimant in the sum of Kshs. 149,760 plus costs and interest.

Key legal issues

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01

Whether the respondent had a valid and fair reason to dismiss the claimant

Holding

Yes - absence from work without permission amounts to gross misconduct under section 44(4)(a) of the Employment Act, justifying summary dismissal

Reasoning

The claimant admitted he was absent without permission and merely notified a fellow guard by phone after obtaining a sick off, without informing the employer. Under section 44(4)(a) such absence constitutes gross misconduct permitting summary termination. The court rejected the argument that his acquittal in the criminal case barred disciplinary action, holding that criminal acquittal does not immunise an employee from internal discipline.

p. 3
02

Whether the claimant was accorded a fair hearing before dismissal

Holding

No - the respondent failed to prove compliance with section 41 of the Employment Act

Reasoning

The invitation letter merely summoned the claimant to a meeting without disclosing its agenda or that it was a disciplinary hearing which could lead to dismissal, and did not advise him of his right to be accompanied by a fellow employee or shop floor union representative. Although section 41 does not require advance notice of the hearing itself, the right to accompaniment must be explained in advance. The respondent therefore failed to prove a fair procedure on a balance of probability.

p. 3
03

Entitlement to salary during suspension

Holding

The claimant is entitled to salary for the 12 months of suspension

Reasoning

Suspension does not terminate employment; the employee remains bound by the contract and cannot terminate it without notice. Since the claimant was suspended by the employer and was later acquitted, the employer had to pay salary for the suspension period. The claimant remained in employment until dismissed on 27.7.2012, hence 12 months' salary was awarded.

p. 4

Legal principles established

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  • Termination of employment is unfair if the employer fails to prove a valid and fair reason and a fair procedure (section 45(2) Employment Act).
  • An acquittal in criminal proceedings does not render an employee immune from internal disciplinary action by the employer.
  • The right to be accompanied by another employee or shop floor union representative at a disciplinary hearing must be explained to the employee in advance.
  • Suspension from duty does not amount to termination; the employer must pay salary for the suspension period if the employee is found innocent, unless otherwise mutually agreed.

Court orders

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  1. 1.Declaration that the termination of the claimant's employment was unfair and unlawful
  2. 2.Three months' salary in lieu of notice of Kshs. 24,960 under section 49 of the Employment Act
  3. 3.Compensation of three months' salary of Kshs. 24,960 for the unfair termination
  4. 4.Salary for 12 months of suspension totalling Kshs. 99,840
  5. 5.Judgment entered for the claimant in the sum of Kshs. 149,760 plus costs and interest
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act (ss. 41, 44, 45, 49); no specific constitutional provision cited

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, "Pascal Mwamburi Mwandawiro v Board of Management St. Mary’s High School & 2 others [2016] KEELRC 222 (KLR)", Case Analysis (2016). Not stated in judgment (Amended Memorandum of Claim filed 6.7.2015; criminal proceedings referenced as Criminal Case No. 377 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/222/eng@2016-12-09

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