David Tanui v Kerio Valley Development Authority [2016] KEELRC 375 (KLR)
The bottom line
#A Kenyan court upheld a dismissal of an employee who skipped disciplinary hearings, but ordered the employer to pay his unpaid wages during suspension.
What this practically means
#Executive summary
#Key legal issues
#Adequacy of the charges/accusations under section 41 of the Employment Act
The allegations were stated with sufficient clarity and particulars, meeting the statutory requirements of section 41
The show cause notice of 5 July 2013, the Ad Hoc Committee invitation of 12 August 2013 charging desertion, and the 20 September 2013 letter citing absenteeism and the relevant provisions progressively and clearly informed the Claimant of the allegations. The Court found the charges were not vague and contained sufficient particulars.
Jurisdiction and composition of the Disciplinary Committee under the contractual Terms and Conditions of Service
The Committee was validly constituted and competent, and the Board's involvement was proper for an employee in Job Group KV 12
There is no statutory prescription for disciplinary committee composition, so the contractual provisions govern. Resolving the apparent contradiction between sections 10.1/10.2 and 10.3.2, the Court held the Advisory Committee advises on policy while the Disciplinary Committee under section 10.3.2 handles live disciplinary cases, which covered the Claimant's Job Group. The Claimant was also invited to a Board Committee but did not attend.
Substantive fairness – absenteeism
The Claimant explained his absence only up to 28 June 2013; the unexplained absence thereafter was without permission or lawful cause, giving valid and fair reasons for dismissal
Under sections 43, 45 and 47(5) of the Employment Act, the employer had to prove valid and fair reasons. The Claimant explained his whereabouts up to 28 June 2013 but gave no explanation for July, August and September 2013, and failed to attend the Board Committee where he could have done so. The Court drew the inference he was absent without leave.
Substantive fairness – failure to obey a lawful command
Failure to appear before the Board Committee, which was not disputed, was a valid and fair ground for dismissal
The Claimant did not dispute receiving the invitation to appear before the Board Committee on 26 September 2013, yet failed to attend. The Court held that employee non-cooperation with disciplinary proceedings is itself a valid and fair reason to end the employment relationship.
Right to fair administrative action (Article 47)
Not decisive; the Respondent acted as an employer under a contract, so fair labour practices were the relevant right
The pleadings never raised Article 47, and the dismissal flowed from the employment contract rather than administrative action. The Court reserved for other cases situations where the employment relationship is underpinned by public or statutory law.
Remedies
Reinstatement and statutory compensation unavailable; Claimant entitled only to unpaid wages during suspension up to 6 January 2014 and a Certificate of Service
Both reinstatement and the section 49(1) compensation fall away given the finding of fair dismissal. Withholding wages during suspension without contractual or statutory authority was unlawful; the applicable contractual provision allowing half or nil pay on financial loss was not invoked or communicated. A Certificate of Service is a statutory right.
Legal principles established
#- Section 41 of the Employment Act, 2007 gives content to the constitutional right to fair labour practices and prescribes the irreducible minimums of procedural fairness in termination
- An employee is under an obligation to cooperate with an employer during disciplinary proceedings, and misgivings about the process should be raised with the employer first, not in Court
- Non-cooperation by an employee with disciplinary proceedings may constitute a valid and fair reason to end the employment relationship
- Without statutory or contractual authority, withholding of wages during suspension is unlawful
- Where an employer acts pursuant to an employment contract rather than taking administrative action, the right to fair labour practices rather than fair administrative action is primarily engaged
Court orders
#- 1.Declaration implicit in the finding that the summary dismissal of the Claimant was fair
- 2.Respondent to compute and pay the Claimant unpaid wages for the period of suspension up to 6 January 2014
- 3.Respondent to issue the Claimant a Certificate of Service within 14 days
- 4.Cause otherwise dismissed
- 5.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Employment Act, 2007; determination on the record pursuant to rule 21 of the Employment and Labour Relations Court (Procedure) Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Cattwright v Principal Secretary, State Department of Lands And Physical Planning Ministry of Lands, Public Works, Housing & Urban Development & 2 others (Petition E127 of 2023) [2023] KEELRC 3404 (KLR)[2023] KEELRC 3404 (KLR)21 Dec 2023
- Cattwright v Principal Secretary, State Department of Lands And Physical Planning Ministry of Lands, Public Works, Housing & Urban Development & 2 others (Petition E127 of 2023) [2023] KEELRC 3404 (KLR)[2023] KEELRC 3404 (KLR)21 Dec 2023applied
Cite this brief
#Cite this brief
Caselaw, "David Tanui v Kerio Valley Development Authority [2016] KEELRC 375 (KLR)", Case Analysis (2016). Cause No 374 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/375/eng@2016-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.