Jeremiah Okoth Olale v Kibos Sugar & Allied Industries Ltd [2016] KEELRC 485 (KLR)
The bottom line
#A Kenyan court ruled suspending an employee without pay for over four months was unlawful, awarding him over Kshs. 348,000 for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absconded duty or was dismissed
The Claimant did not abscond; he was unfairly terminated after a flawed disciplinary process
The Claimant had only left his station to buy airtime from the reception with implied permission. His supervisor was never called to confirm denial of permission. The disciplinary process was flawed from the show cause letter (3 hours to respond), through the indefinite suspension without pay, to the aborted hearing with inadequate notice and denial of union representation of choice. The court thus rejected the abscondment defence and found unfair termination.
Validity of suspension without pay
The suspension was unlawful as it was not provided for under disciplinary rules under section 12 of the Employment Act
The Act does not provide for suspension. For suspension to be valid it must be provided for in a statement of disciplinary rules under section 12; otherwise suspension without pay is unlawful. The suspension here exceeded 21 days and ran over 4 months without pay and without communicating when the Claimant was to resume or whether he would be paid, amounting to bad labour practice and inhuman treatment.
Entitlement to remedies
Claimant awarded salary for suspension period, one month notice pay, accrued leave, underpayments, and 6 months' salary compensation; leave allowance and severance pay refused
Having found the suspension illegal, salary and house allowance were awarded up to 4th March 2014 at Kisumu City rates. One month's notice pay was awarded under section 35. Accrued leave of 26 days was awarded as the employer failed to produce leave records. Underpayments were awarded as the Respondent did not controvert the claim. Compensation of 6 months' salary was granted for unfair termination, considering all relevant circumstances.
Legal principles established
#- Suspension of an employee is not provided for in the Employment Act and is only valid if provided for under a statement of disciplinary rules under section 12; suspension without pay in the absence of such provision is unlawful.
- An employer must accord an employee a proper hearing under section 41, including the right to representation by a union representative of his choice, and the determination must be communicated in writing.
- Leaving one's work station briefly with implied permission does not constitute absenteeism justifying suspension and termination.
- Where the employer fails to produce leave records, the employee's claim on accrued leave stands.
Court orders
#- 1.Kshs. 78,918.90 as salary and house allowance withheld during suspension
- 2.Kshs. 19,093.30 as one month's salary in lieu of notice
- 3.Kshs. 14,389.10 as accrued leave of 26 days
- 4.Kshs. 121,845.00 as underpayments of basic salary and house allowance
- 5.6 months' salary, Kshs. 114,559.80, as compensation for unfair termination
- 6.Respondent to pay the Claimant's costs of the suit; decretal sum to attract interest from date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Okoth Olale v Kibos Sugar & Allied Industries Ltd [2016] KEELRC 485 (KLR)", Case Analysis (2016). Claim No. 190 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/485/eng@2016-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.