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ELRCPartially AllowedCause No. 371 of 2015· [2016] KEELRC 747 (KLR)

Wilson K. Tuigong v Eldoret Water & Sanitation Company Limited (ELDOWAS) [2016] KEELRC 747 (KLR)

Employment and Labour Relations Court
6 July 2016
MOMaureen Onyango
1,990 words in judgment
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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, employed by the respondent on a contract later converted to a five-year term expiring in November 2017, was terminated on 11th September 2015 on grounds of disrespect to the Board, walking out of a Naivasha meeting without permission, and lack of remorse and evasiveness. He sought declarations of unfair termination, reinstatement or compensation totalling Shs.13,201,515, costs and a certificate of service. The court framed two issues: whether the termination was procedurally and substantively fair under sections 41, 43 and 45 of the Employment Act, and entitlement to remedies. On procedure, the court found the hearing unfair: the invitation to the Board meeting initially omitted reasons, and at the hearing the claimant was mostly questioned on performance matters not in the show cause letter and was not given the opportunity to make representations. On substance, the court found no proof of grounds for termination: the grounds in the termination letter were not the subject of the disciplinary hearing, walking out of a meeting did not constitute neglect of duty, and evasiveness was not a valid ground. The termination was therefore unfair. On remedies, the court declined notice pay (already paid Shs.513,112.20), leave dues (none outstanding), severance (payable only on redundancy) and damages for the unexpired contract term (no contractual or legal basis). The claimant was awarded six months' gross salary, Shs.1,890,000, as compensation, plus costs of the suit.

Key legal issues

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01

Procedural fairness of the termination

Holding

The hearing was not procedurally fair under section 41 of the Employment Act.

Reasoning

The show cause notice gave grounds, but the letter inviting the claimant to the special Board meeting did not state reasons, prompting postponement. The Q&A session attached to the minutes showed most questions were on performance (not in the show cause letter) and the claimant was not given an opportunity to make representations beyond answering questions. The chairman, who was the complainant, chaired the meeting.

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02

Substantive fairness / proof of grounds for termination

Holding

There was no valid proof of the grounds for termination under sections 43 and 45 of the Employment Act.

Reasoning

The grounds in the termination letter were not the subject of the disciplinary hearing; the ground of showing no remorse and being evasive was never put to the claimant; walking out of a meeting does not constitute neglect of duty; and being evasive is not a ground for termination.

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03

Remedies for unfair termination

Holding

Claimant awarded six months' gross salary as compensation (Shs.1,890,000); notice, leave, severance and unexpired-term claims rejected.

Reasoning

The claimant was entitled to compensation having been unfairly terminated. Notice and leave had been paid or were not owing; severance applies only to redundancy; no legal basis exists for salaries for the unexpired contract term. The court considered all circumstances and fixed compensation at six months' gross salary.

p. 4

Legal principles established

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  • Before termination on grounds of misconduct the employer must explain the reasons to the employee and hear and consider the employee's representations, per section 41 of the Employment Act.
  • An employee asked to appear before a board must be informed of the reasons for the hearing; a hearing limited to answering questions without opportunity to make representations is not procedurally fair.
  • Grounds for termination must have been the subject of the disciplinary hearing and be proven under sections 43 and 45 of the Employment Act.
  • Walking out of a meeting does not constitute neglect of duty.
  • Severance pay is only payable to an employee declared redundant.

Court orders

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  1. 1.A finding that the termination of the claimant's employment was unfair
  2. 2.Compensation of six months' salary, Shs.1,890,000/-, based on the claimant's gross salary of Shs.315,000/- per month
  3. 3.The Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 51
  • Employment ActSection 36
  • Constitution of KenyaArticle 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45 and 51 invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wilson K. Tuigong v Eldoret Water & Sanitation Company Limited (ELDOWAS) [2016] KEELRC 747 (KLR)", Case Analysis (2016). Cause No. 371 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/747/eng@2016-07-06

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