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ELRCPartially AllowedCause filed 28 October 2013 (number not stated in judgment)· [2016] KEELRC 402 (KLR)

Barnabas Kiprono v Kerio Valley Development Authority [2016] KEELRC 402 (KLR)

Employment and Labour Relations Court
12 July 2016
3,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, transferred to Tot Station as Farm Manager in April 2013 during a mass staff transfer by Kerio Valley Development Authority, was issued a show cause notice in June 2013 over absence from duty, invited before an Ad Hoc Committee on Discipline, and later before a Board Committee, neither of which he attended. He was suspended on 20 September 2013 and summarily dismissed on 6 January 2014 for desertion of duty and insubordination, having earlier filed an Eldoret High Court Petition challenging the transfers and disciplinary process. The Court framed the issues as whether the dismissal was unfair and the appropriate remedies. On procedure, it held the charges were stated with sufficient clarity, that the Ad Hoc Committee was validly constituted under the respondent's regulations, and that there is no absolute right to a hearing in disciplinary cases - only an opportunity to be heard, which the respondent had given and the Claimant snubbed. The Court declined to engage the right to fair administrative action as Article 47 was not pleaded, the respondent acting as employer rather than taking administrative action. On substance, absences up to 27 June 2013 were sufficiently explained, but the Court inferred unexplained absence after 20 July 2013, and the failure to attend the Board Committee was insubordination warranting summary dismissal. Reinstatement and statutory compensation were consequently unavailable. However, as no financial loss was suggested and the Claimant was never told he would be on half pay, withholding wages during suspension was unlawful. The Court ordered the respondent to compute and pay wages up to 6 January 2014 and issue a Certificate of Service within 14 days, and dismissed the Cause with no order as to costs.

Key legal issues

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01

Adequacy of the charges in the disciplinary process

Holding

The show cause notice and subsequent invitation sufficiently and clearly set out the allegations, meeting the requirements of section 41 of the Employment Act

Reasoning

The show cause notice cited the respondent's Regulation 10.4.1(a),(c) and (e) whose terms were set out; the later notice detailed absenteeism for 122 days citing section 44(4)(a) of the Employment Act and the Code of Regulations. The Court held the allegations were neither vague nor lacking particulars, so the statutory requirements of section 41 were met.

p. 3
02

Jurisdiction and composition of the disciplinary committee

Holding

The Ad Hoc Committee was validly constituted by the Managing Director and had jurisdiction over the Claimant

Reasoning

The Court reconciled the apparent contradiction between sections 10.1.1/10.1.2 (Advisory Committee) and 10.3.2 (Disciplinary Committee) of the respondent's Code of Regulations, concluding the Advisory Committee merely advises management while the Disciplinary Committee appointed by the Managing Director hears cases. The Ad Hoc Committee handling Job Group KV 9 and above staff was validly appointed by the Managing Director.

p. 4
03

Opportunity to be heard

Holding

The respondent complied with procedural fairness; the Claimant snubbed two invitations to be heard and cannot complain

Reasoning

The Claimant was asked to show cause and responded; he was invited before the Ad Hoc Committee and a Board Committee but failed to attend either. There being no absolute right to a hearing, only an opportunity to be heard, the respondent had discharged its duty. His non-cooperation could not now found a complaint of procedural unfairness.

p. 4
04

Right to fair administrative action

Holding

Article 47 was not pleaded; dismissal pursuant to an employment contract engages the right to fair labour practices rather than fair administrative action

Reasoning

The Court noted Article 47 was absent from the pleadings. In dismissing the Claimant the respondent acted as an employer under an employment contract, not in taking administrative action, so the right to fair labour practices was the relevant right. The Court reserved the possibility that fair administrative action may apply where employment is underpinned by public/statutory law.

p. 4
05

Substantive fairness - absenteeism

Holding

Absences up to 27 June 2013 were explained, but the Claimant was not at his duty station after 20 July 2013 without permission or lawful cause, justifying dismissal

Reasoning

The Court found the Claimant had lawful cause or sufficient explanation for absences up to 27 June 2013. However, after the show cause notice he offered no plausible explanation for July to September 2013, and the Deputy Farm Manager's evidence that he was last at the station on 20 July 2013 was unchallenged. The Court inferred unexplained absence and held valid and fair reasons existed.

p. 6
06

Substantive fairness - insubordination

Holding

Failure to appear before the Board Committee was insubordination which, coupled with unexplained absences, warranted summary dismissal

Reasoning

It was not disputed the Claimant failed to appear before the Board Committee on 26 September 2013. This amounted to insubordination. The only question was whether summary dismissal was proportionate, and the Court held that combined with the unexplained post-show-cause absences, the circumstances warranted summary dismissal.

p. 6
07

Wages during suspension

Holding

The Claimant was entitled to wages up to 6 January 2014 because the suspension was on full pay absent any financial-loss finding or notification of half pay

Reasoning

Section 10.2.4 of the respondent's regulations permits suspension on half salary or without salary only where the Managing Director opines financial loss may be involved. The suspension letter suggested no financial loss, nor was any indicated in testimony, and the Claimant was never informed he would be on half pay. Withholding wages was therefore unlawful.

p. 7

Legal principles established

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  • Section 41 of the Employment Act gives content to the constitutional right to fair labour practices and prescribes the irreducible minimum of procedural fairness in dismissal
  • There is no absolute right to a hearing in disciplinary cases; the right is to be availed an opportunity to be heard
  • An employee is under an obligation to cooperate with an employer during disciplinary proceedings and any misgivings should be raised with the employer first, not in Court
  • Withholding of wages during suspension without statutory or contractual authority is unlawful

Court orders

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  1. 1.Declaration implicit in the finding that the summary dismissal of the Claimant was fair
  2. 2.Respondent to compute and pay the Claimant wages up to 6 January 2014 (wages withheld during suspension)
  3. 3.Respondent to issue a Certificate of Service to the Claimant within 14 days
  4. 4.Cause otherwise dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment Act, 2007Sections 41, 43, 44(4)(a), 45, 47(5), 49(1)

Cases cited (1)

  • Barnabas Kiprono & 5 Ors v Kerio Valley Development Authority
    Eldoret High Court Petition No. 16 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under Article 162(2) of the Constitution and the Employment Act, 2007 (implied; not expressly stated)

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, "Barnabas Kiprono v Kerio Valley Development Authority [2016] KEELRC 402 (KLR)", Case Analysis (2016). Cause filed 28 October 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/402/eng@2016-07-12

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