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ELRCDismissedCause No 1849 of 2014· [2016] KEELRC 776 (KLR)

Stephen Amolo Amolo v African Medical & Research Foundation [2016] KEELRC 776 (KLR)

Employment and Labour Relations Court
15 August 2016
LNLINNET NDOLO
2,279 words in judgment
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The bottom line

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Kenya's Employment Court upheld AMREF's dismissal of an employee who used an organisational air ticket for a private trip without approval.

What this practically means

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Executive summary

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The Claimant, a Project Officer employed by AMREF on a two-year contract from July 2012 to June 2014, was terminated on 22nd April 2013 after it emerged that he had used an air ticket obtained through the Respondent to travel from Mombasa to Kisumu on 11th October 2012 for a private medical appointment, at a cost of Kshs 7,335, without his supervisors' approval. He was charged with failing to seek approval, perpetuating fraud under the HR policies, and agreeing to be surcharged. He sought reinstatement or, in the alternative, payment of salaries and benefits to the end of the contract (Kshs 3,434,886), general damages, a certificate of service, costs and interest. The Respondent maintained that the termination followed its HR procedures, that the Claimant admitted before the Disciplinary Committee that he had not sought approval and should have repaid the amount, and that no appeal was received. The Court, Linnet Ndolo J, framed three issues: whether the termination was justifiable, whether it was procedurally fair, and whether remedies were due. Applying Section 43 of the Employment Act and its own decision in Paul Waigiri Muriuki v Nairobi Water and Sewerage Company Limited, the Court held the employer had a valid and reasonable reason, given the seriousness of an audit query in a donor-funded organisation, and declined to interfere. Compliance with Section 41 - show cause, hearing, right to be accompanied - made the termination procedurally fair. The claim was dismissed with each party bearing their own costs in view of the Claimant's medical condition.

Key legal issues

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01

Validity of the reason for termination under Section 43 of the Employment Act

Holding

The employer had a valid reason: the Claimant used organisational funds for personal travel without approval and failed to reimburse, generating an audit/compliance query damaging to a donor-funded organisation

Reasoning

The Court accepted that the Kisumu travel was private and unauthorised. The Claimant could not confirm that his supervisor approved the itinerary adjustment, and admitted the requisition form did not identify the personal expenditure. A compliance check query seriously affects a donor-funded organisation, so the Respondent's decision was reasonable and the Court declined to interfere.

p. 6
02

Procedural fairness under Section 41 of the Employment Act

Holding

The termination was procedurally fair: show cause letter, response, disciplinary hearing with the right to be accompanied, and an opportunity to refund the money before termination

Reasoning

The Court traced the disciplinary process: show cause on 21st March 2013, response, invitation to a Disciplinary Committee hearing on 22nd April 2013 with notice of the right to be accompanied by a colleague, minutes produced with no objection, and a prior chance to refund the amount.

p. 6

Legal principles established

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  • Under Section 43 of the Employment Act, the burden is on the employer to demonstrate a valid reason for termination - one that would move a reasonable employer to terminate
  • The Court will not substitute the employer's decision with its own where the employer's decision is reasonable in the circumstances
  • Compliance with Section 41 of the Employment Act (notice, hearing, right to be accompanied) renders a termination procedurally fair

Court orders

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  1. 1.The Claimant's claim against the Respondent is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41

Cases cited (1)

  • Paul Waigiri Muriuki v Nairobi Water and Sewerage Company Limited
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41 and 43) over termination of employment disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Stephen Amolo Amolo v African Medical & Research Foundation [2016] KEELRC 776 (KLR)", Case Analysis (2016). Cause No 1849 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/776/eng@2016-08-15

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