William Metto v Kerio Valley Development Authority [2016] KEELRC 372 (KLR)
The bottom line
#A Kenyan court upheld an employee's dismissal for absenteeism but ordered his employer to pay full wages for the suspension period.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal was procedurally fair: the Claimant was given adequate particulars of the charges and opportunities to be heard, including before a Committee of the Board, which he declined to attend; the Disciplinary Committee was validly constituted with jurisdiction over an employee in Job Group KV 9.
The show cause letter dated 5 July 2013 stated the allegation of absence without leave and the Claimant responded. The invitation to the Ad Hoc Committee stated the charge of desertion of duty. Although sections 10.1.1 and 10.3.2 of the Code of Regulations appear contradictory, the Court reconciled them: the Advisory Committee advises while the Disciplinary Committee handles live disciplinary cases. The Claimant, in Job Group KV 9, was subject to the Disciplinary Committee's jurisdiction, and was also invited to a Board Committee which he snubbed.
Substantive fairness of the summary dismissal
The Respondent proved a valid and fair reason for dismissal: absence from duty without permission or lawful cause.
The Claimant explained his failure to return to Turkwel Station as being due to lack of transport provided by the Respondent, but gave no explanation why he did not seek more time after the 10 days off lapsed. As a not too junior employee, more was expected of him and he should not have waited for a show cause notice. The Court found absence without lawful cause was established and constituted a valid and fair reason to dismiss.
Unpaid wages during suspension
The Claimant is entitled to wages up to the date of dismissal because the suspension letter did not suggest any financial loss as required by section 10.2.4 of the Terms and Conditions of Service.
While section 10.2.4 permits suspension on half salary or without salary where the Managing Director opines that financial loss may be involved, the suspension letter did not suggest any financial loss nor was any indicated in testimony. Without such statutory or contractual authority, withholding wages during suspension is unlawful, entitling the Claimant to wages up to 6 January 2014, to be computed and paid by the Respondent.
Legality of the mass transfers and allegations of malice
The Court declined to determine the legality of the transfers, as that question was pending before the High Court in Eldoret, and the Claimant had not made an election as to how to proceed.
The Claimant and others had filed Eldoret High Court Petition No. 16 of 2013 challenging the transfers and the disciplinary process. The Court regarded the High Court as the proper forum to canvass the issue of the legality of the transfers and declined to delve into it in these proceedings.
Legal principles established
#- Without a statutory or contractual authority, withholding of wages during suspension is unlawful.
- An employee who declines an opportunity to be heard cannot later complain of lack of procedural fairness.
- A party cannot introduce in submissions matters or documents never laid as a basis through pleadings or documentation.
Court orders
#- 1.The Respondent is directed to issue a Certificate of Service to the Claimant within 14 days
- 2.The Respondent is ordered to compute and pay the Claimant unpaid wages during suspension up to 6 January 2014
- 3.Save for the unpaid wages during suspension, the Cause is dismissed with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; determination on pleadings, documents and submissions pursuant to rule 21 of the Employment and Labour Relations Court (Procedure) Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Metto v Kerio Valley Development Authority [2016] KEELRC 372 (KLR)", Case Analysis (2016). Cause commenced 28 October 2013 (Nakuru); related: Nakuru Cause No. 368 of 2013, Barnabas Kiprono v Kerio Valley Development Authority. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/372/eng@2016-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.