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ELRCPartially AllowedEmployment Cause (Memorandum of Claim dated 15th July 2015, filed 21st July 2015)· [2016] KEELRC 534 (KLR)

Mary Wagikuyu Komu v The Kenya Hospital Association T/A The Nairobi Hospital [2016] KEELRC 534 (KLR)

Employment and Labour Relations Court
14 October 2016
LNLINNET NDOLO
1,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent Nairobi Hospital as a Cashier from 14th December 2010 (later an Accounts Assistant), was dismissed summarily on 27th August 2014 following investigations that revealed fraudulent transactions resulting in losses of over Kshs. 92,000,000. She was issued a show cause memorandum on 25th August 2014 requiring a response by 26th August 2014, the same date set for a disciplinary hearing. She neither responded to the memo nor attended the hearing, and was summarily dismissed. She sued for unfair termination, claiming notice pay, September 2014 salary, 20 days' leave pay and 12 months' compensation. The court framed two issues: whether the dismissal was lawful and fair, and whether she was entitled to the remedies sought. Holding that Section 41 of the Employment Act, 2007 is satisfied by a show cause letter and an oral hearing, and following Jackson Butiya v Eastern Produce Kenya Limited, the court found the Claimant had squandered the internal disciplinary mechanism and could not complain of denial of a hearing; the unfair dismissal claim failed. Notice pay (Kshs. 56,716) was admitted and payable, and 20 days' leave pay (Kshs. 37,810) succeeded as the Respondent produced no leave records. The September 2014 salary claim and the 12 months' compensation were refused. Judgment of Kshs. 94,526 with interest at court rates from the date of judgment was entered, and since the claim succeeded only in part, each party was directed to bear their own costs. The criminal charges of stealing by servant remained pending at the time of judgment.

Key legal issues

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01

Whether the Claimant's summary dismissal was lawful and procedurally fair

Holding

The dismissal was lawful and fair; the Claimant was given an opportunity to be heard but chose not to respond to the show cause memo or attend the disciplinary hearing

Reasoning

Section 41 of the Employment Act, 2007 requires that an employee facing discipline be asked to respond to a show cause letter and attend an oral hearing. The Respondent issued a show cause memo on 25th August 2014 and scheduled a hearing for 26th August 2014. The Claimant neither responded nor attended, and no documentary evidence supported her claim that she sought more time. Having ignored the summons, she could not complain of denial of a hearing. Her claim for unfair dismissal failed.

p. 4
02

Entitlement to terminal dues

Holding

Notice pay and 20 days' leave pay awarded; September 2014 salary refused

Reasoning

The Respondent admitted the claim for one month's salary in lieu of notice, which was payable. The Respondent produced no leave records to counter the claim for 20 days' leave pay, so that claim succeeded. The claim for September 2014 salary failed as the Claimant did not work in that month following her 27th August 2014 dismissal.

p. 4

Legal principles established

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  • Procedural fairness under Section 41 of the Employment Act, 2007 is fulfilled by requiring the employee to respond to a show cause letter and attend an oral disciplinary hearing; an employee cannot decline to participate and later claim they were not heard
  • An employee who squanders the employer's internal disciplinary mechanism cannot later claim they were not afforded an opportunity to be heard

Court orders

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  1. 1.Judgment entered in favour of the Claimant for 1 month's salary in lieu of notice of Kshs. 56,716
  2. 2.Leave pay for 20 days of Kshs. 37,810 awarded (total Kshs. 94,526)
  3. 3.Interest on the judgment amount at court rates from the date of judgment until payment in full
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 41
  • Penal CodeSection 281
  • Retirement Benefits Actnull

Cases cited (1)

  • Jackson Butiya v Eastern Produce Kenya Limited
    Cause No 335 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Wagikuyu Komu v The Kenya Hospital Association T/A The Nairobi Hospital [2016] KEELRC 534 (KLR)", Case Analysis (2016). Employment Cause (Memorandum of Claim dated 15th July 2015, filed 21st July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/534/eng@2016-10-14

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