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ELRCPartially AllowedCause Number 1373 of 2010· [2016] KEELRC 653 (KLR)

Tonny Moses Adera v Millie G.A. Odhiambo & 5 others [2016] KEELRC 653 (KLR)

Industrial Court of Kenya
18 August 2016
JRJames Rika
2,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan NGO wrongly dismissed its project manager without a hearing or evidence and was ordered to pay him nearly Kshs. 900,000.

What this practically means

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Executive summary

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The Claimant, an Advocate of the High Court, was employed by CRADLE - The Children Foundation as Project Manager of the Counter Trafficking in Persons Project on a four-year contract running from 1st May 2009. On 6th September 2010 he was summarily dismissed on the allegation that he had secretly represented a suspect charged with defilement of a minor at Kibera Law Courts, contrary to CRADLE's workplace policies and interests. The Board of Trustees met on 4th September 2010 and decided to dismiss him without notifying him of the allegations or affording him a hearing. The dispute was determined on pleadings, documents and submissions, the Respondents not attending court. The Court held that although the allegations, if true, would amount to a conflict of interest, the Respondents produced no evidence - no criminal proceedings, no testimony from the donor, parent or the Legal Resources Foundation - to substantiate them, so there was no substantive justification under Sections 43 and 45 of the Employment Act 2007. Procedurally, the dismissal was flawed because the employee was never heard; hearing is a mandatory requirement imposed on employers, and an employee need not request a hearing. The Court awarded 8 months' gross salary (Kshs. 800,000) as compensation under Section 49, plus 6 days' salary and accrued annual leave, totalling Kshs. 899,999.90, payable within 30 days, and ordered release of a certificate of service and costs to the Claimant. Claims for severance pay, anticipated salary and leave for the unexpired contract term, unspecified allowances and interest were declined to avoid double compensation.

Key legal issues

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01

Substantive justification for summary dismissal

Holding

Dismissal lacked substantive justification; allegations of conflict of interest were not investigated or established

Reasoning

The Respondents alleged the Claimant secretly represented a child defiler contrary to CRADLE's interests, but produced no criminal proceedings, no evidence from the donor, parent, or the Legal Resources Foundation. Sections 43 and 45 of the Employment Act 2007 require the employer to prove substantive justification, which was absent.

p. 4
02

Procedural fairness in termination

Holding

Dismissal was procedurally unfair; the Claimant was never notified of allegations or given a hearing before the Board's decision

Reasoning

The Board met on 4th September 2010, deliberated on alleged employment offences without involving the Claimant, and dismissed him without seeking his explanation. The Respondents misapplied the pre-2007 employment at-will doctrine, overlooking Sections 41 and 45 of the Employment Act 2007 requiring investigation, formal charges and a hearing.

p. 4
03

Remedies for unfair termination

Holding

Claimant awarded 8 months' gross salary in compensation under Section 49, plus 6 days' salary and accrued leave

Reasoning

The Court considered the 32 months of expected service lost in granting 8 months' compensation. Claims for future salary and leave were refused to avoid double compensation, as compensation already redresses the economic injury and the employee is expected to mitigate.

p. 4

Legal principles established

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  • Hearing of an employee before termination is a mandatory requirement imposed on the employer by law; an employee need not request a hearing
  • A certificate of service must be supplied by the employer at the end of employment without the employee requesting it
  • Annual leave is earned through actual service only, not anticipated service

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondents to pay the Claimant 8 months' gross salary at Kshs. 800,000 for unfair termination
  3. 3.Respondents to pay 6 days' salary at Kshs. 27,272.70
  4. 4.Respondents to pay accrued annual leave at Kshs. 72,727.20 (total Kshs. 899,999.90)
  5. 5.Payment within 30 days of delivery of the decision
  6. 6.Certificate of Service to be released to the Claimant forthwith
  7. 7.Costs to the Claimant
  8. 8.Other prayers declined; no order on interest

Authorities

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Legislation

  • Employment ActSections 41, 43, 45, 49, 51
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a); Rule 21
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rule 27(1)(a); dispute over unfair and unlawful termination under the Employment Act 2007

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, "Tonny Moses Adera v Millie G.A. Odhiambo & 5 others [2016] KEELRC 653 (KLR)", Case Analysis (2016). Cause Number 1373 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/653/eng@2016-08-18

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