Eliud Chikati v Chairman, B.O.G. Friends School Bokoli & another [2016] KEELRC 752 (KLR)
The bottom line
#A Kenyan school watchman dismissed for joining a union won Shs.139,500 after the court found his dismissal unfair because the school never told him the charges.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal was procedurally unfair: the Claimant was not informed of the charges against him, was summoned the evening before without a statement of reasons, and was not given the opportunity to be accompanied to the hearing
Section 41 of the Employment Act requires written charges, an opportunity to respond, and the right to be accompanied by a union official or fellow employee. The summons letter merely asked the Claimant to appear to 'clarify issues concerning the school workers' without stating any charges, so it did not constitute a summons to a disciplinary hearing. The Respondent also failed to follow its own Code of Conduct disciplinary procedure under clause 16.
Substantive fairness of the dismissal
The dismissal was substantively unfair as there was no evidence or proof of the grounds stated in the dismissal letter, and the court found the real reason was the Claimant's union activities
The court found no evidence proving the grounds in the letter of dismissal. On the evidence, including a 2008 letter prohibiting the Claimant from joining the union and threats to dismiss him if he did not withdraw from the union, the court concluded the Claimant was dismissed for engaging in union activities, which is prohibited by section 47 of the Employment Act, sections 4 and 5 of the Labour Relations Act and Article 41 of the Constitution.
Remedies for unfair dismissal
The Claimant was awarded 12 months gross salary as compensation taking into account his length of service, plus 3 months salary in lieu of notice under clause 17(a) of the Respondent's Code of Conduct
Having found the dismissal unfair and motivated by union activity, the court awarded the equivalent of 12 months gross salary as compensation, considering the Claimant's length of service from December 2004 to April 2014. Notice pay of 3 months was awarded as provided in clause 17(a) of the Respondent's own Code of Conduct. The awards totalled Shs.111,600 and Shs.27,900 respectively.
Legal principles established
#- Before dismissing an employee, the employer must inform the employee in writing of the charges, allow the employee to be accompanied by a union official or fellow employee, and hear representations, per section 41 of the Employment Act
- A summons that does not state the charges or that it is for a disciplinary hearing does not constitute a valid summons to a disciplinary hearing
- Dismissal for engaging in union activities is prohibited by section 47 of the Employment Act, sections 4 and 5 of the Labour Relations Act and Article 41 of the Constitution
Court orders
#- 1.The Respondents to pay the Claimant Shs.111,600 being 12 months gross salary as compensation for unfair dismissal
- 2.The Respondents to pay the Claimant Shs.27,900 being 3 months salary in lieu of notice
- 3.The Respondents to pay the Claimant's costs of the suit
- 4.The decretal sum to attract interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims (Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Chikati v Chairman, B.O.G. Friends School Bokoli & another [2016] KEELRC 752 (KLR)", Case Analysis (2016). Cause No. 53 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/752/eng@2016-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.