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ELRCAllowedEmployment Cause (memorandum of claim filed 15.03.2015)· [2016] KEELRC 223 (KLR)

Naftaly Kiogora v Meru Central Dairy Co-operative Union Limited (Cause 51 of 2016) [2016] KEELRC 223 (KLR)

Employment and Labour Relations Court
2 December 2016
1,996 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 two-year suspension without pay or hearing was illegal, ordering the employer to pay full wages and reinstate the worker.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 20.12.2010 and confirmed as production supervisor in 2013, was suspended by letter dated 29.12.2014 on grounds of gross insubordination, on half pay and with a promise of a disciplinary hearing. He sued in person seeking nullification of the suspension, full salary for the suspension period, unconditional reinstatement and costs. The respondent contended that the claimant attended a management board meeting on 08.01.2015, was unsuccessful in his defence, and was terminated effective 19.01.2015, with the termination letter copied to the county labour officer. The court found no evidence that the claimant received the hearing invitation or the termination letter, no minutes of the alleged board meeting, and that the human resource manager who signed the key letters was not called to testify. The respondent's advocates' letter of 31.10.2015 describing the claimant as having terminated his own employment was held to be a substantive inconsistency not curable under the slip rule, which applies to pleadings and not evidence. The respondent failed to discharge its evidential burden under section 43 of the Employment Act. The court held the claimant was never terminated but remained on a long suspension whose terms were dishonoured; the suspension, blended with bad faith, was an unfair labour practice contrary to Article 41(1) of the Constitution. Following its prior decision in the Timber Treatment case, the court awarded full salary for the 24-month suspension (Kshs.622,800.00), reinstatement without break in service effective 29.12.2014, and costs fixed at Kshs.35,000.00, all payable by 15.01.2017 failing interest at court rates.

Key legal issues

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01

Whether the claimant was terminated on 19.01.2015

Holding

The court found no termination occurred; the claimant remained on suspension.

Reasoning

There was no evidence the claimant received the invitation to the disciplinary hearing of 08.01.2015, no minutes of the alleged board meeting, and no proof of delivery of the termination letter. The respondent's advocates' letter of 31.10.2015 describing the claimant as having terminated his own employment was an inconsistency counsel could not cure. The human resource manager was not called to testify. The respondent failed to discharge its evidential burden under section 43 of the Employment Act.

p. 2
02

Whether the suspension should be declared null

Holding

Yes; the suspension was unreasonable and founded on bad faith, amounting to an unfair labour practice under Article 41(1).

Reasoning

The promises in the suspension letter — half pay and a disciplinary hearing — were never honoured. The suspension persisted for about 24 months, during which the respondent neither paid the half salary nor convened the promised hearing. Such conduct, marked by bad faith, violated the claimant's right to fair labour practices and warranted nullification of the suspension.

p. 3
03

Remedies: pay for suspension period and reinstatement

Holding

Claimant entitled to full salary for the 24-month suspension (Kshs.622,800.00) and unconditional reinstatement effective 29.12.2014.

Reasoning

The nullified suspension leaves no bar to the prayers. Following the court's own prior decision in the Timber Treatment case, an employee unlawfully suspended carries a legitimate expectation to return to work and is entitled to withheld salaries for the period, unless he took other employment or failed to exculpate himself. The claimant survived on subsistence farming and lost income, with no opportunity to mitigate.

p. 3

Legal principles established

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  • An employer bears the evidential burden to establish genuine reasons for termination under section 43 of the Employment Act, 2007.
  • A letter or piece of evidence in proceedings is not a pleading amenable to amendment under the slip rule.
  • A suspension blended with bad faith, prolonged and whose terms (half pay and disciplinary hearing) are not honoured amounts to an unfair labour practice contrary to Article 41(1) of the Constitution.
  • An employee unlawfully suspended is entitled to salaries for the suspension period and reinstatement, unless he took other gainful employment or failed to exculpate himself.

Court orders

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  1. 1.Declaration that the claimant's suspension from employment by the respondent's letter dated 29.12.2014 is null
  2. 2.Respondent to pay the claimant full salary for the period of suspension being 24 months times the last basic pay of Kshs.25,950.00, totalling Kshs.622,800.00, payable by 15.01.2017 failing interest at court rates till full payment
  3. 3.Claimant reinstated in the respondent's employment without a break in service with effect from 29.12.2014, to report to the human resource manager not later than 03.01.2017 at 8.00 a.m.
  4. 4.Respondent to pay claimant's costs of the suit fixed at Kshs.35,000.00 payable by 15.01.2017 failing interest at court rates till full payment

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsubsection 49(4)(f)
  • Constitution of Kenya, 2010Article 41(1)

Cases cited (1)

  • Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers –Versus- Timber Treatment International Limited
    [2013]eKLR, Industrial Cause No. 21 of 2012 at Nakuru
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Article 41(1) of the Constitution engaged)

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, "Naftaly Kiogora v Meru Central Dairy Co-operative Union Limited (Cause 51 of 2016) [2016] KEELRC 223 (KLR)", Case Analysis (2016). Employment Cause (memorandum of claim filed 15.03.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/223/eng@2016-12-02

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