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ELRCPartially AllowedCause No. 53 of 2015· [2016] KEELRC 752 (KLR)

Eliud Chikati v Chairman, B.O.G. Friends School Bokoli & another [2016] KEELRC 752 (KLR)

Employment & Labour Relations Court
6 July 2016
1,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed as a watchman by the Board of Governors of Bokoli Friends School from 1st December 2004, was summarily dismissed on 29th April 2014. He claimed the dismissal was unfair because the Respondents failed to comply with the school's Code of Conduct for Employees, and he alleged he was dismissed for engaging in union activities, following threats to sack him unless he withdrew from the union and a reduction of his salary from Shs.14,800 to Shs.9,500 after he joined the union. He sought three months' salary in lieu of notice, damages for wrongful dismissal of Shs.177,600, costs and interest. The Respondents denied the allegations, asserting the Claimant was summoned by letter dated 25th April 2014, informed of the charges, given an opportunity to defend himself before the board, and lawfully dismissed for misconduct. The court framed two issues: whether the dismissal was unfair and whether remedies were due. It held the dismissal procedurally unfair because the summons did not state any charges or disclose it was for a disciplinary hearing, and the Claimant was not allowed accompaniment by a union official or colleague as required by section 41 of the Employment Act and clause 16 of the school's own Code of Conduct. Substantively, there was no proof of the dismissal grounds, and the evidence showed the Claimant was dismissed for union activities, contrary to section 47 of the Employment Act, sections 4 and 5 of the Labour Relations Act and Article 41 of the Constitution. The court awarded 12 months' gross salary as compensation (Shs.111,600) and 3 months' notice pay (Shs.27,900), with costs and interest at court rates. The specific damages figure prayed was superseded by the statutory compensation award.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

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

Reasoning

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.

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02

Substantive fairness of the dismissal

Holding

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

Reasoning

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.

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03

Remedies for unfair dismissal

Holding

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

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The Respondents to pay the Claimant Shs.111,600 being 12 months gross salary as compensation for unfair dismissal
  2. 2.The Respondents to pay the Claimant Shs.27,900 being 3 months salary in lieu of notice
  3. 3.The Respondents to pay the Claimant's costs of the suit
  4. 4.The decretal sum to attract interest at court rates

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 47
  • Labour Relations Actsections 4 and 5
  • Constitution of KenyaArticle 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims (Employment Act)

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, "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.