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ELRCPartially AllowedCause No. 2011 of 2014· [2016] KEELRC 988 (KLR)

Esther Omariba v Marie Stopes Kenya Limited [2016] KEELRC 988 (KLR)

Employment and Labour Relations Court
5 July 2016
HWHellen S. Wasilwa
2,635 words in judgment
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The bottom line

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A Kenyan court ruled Marie Stopes unfairly dismissed an employee because it skipped the required disciplinary hearing, awarding her 12 months' salary.

What this practically means

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Executive summary

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The Claimant, employed by Marie Stopes Kenya Limited from 1991 and rising to Franchise Coordinator, was summarily dismissed on 12th February 2014 under Section 44(4)(g) of the Employment Act 2007 for allegedly failing to account for and surrender staff advances, including funds channelled through a colleague, Teresia Mbithe. She claimed damages for unfair and wrongful termination, interest, remittance of NSSF contributions and costs. The Respondent justified the dismissal as lawful and fair. The Court framed three issues: validity of reasons, due process, and remedies. On reasons, it found that although the failure to account for advances was a valid reason for termination, it did not justify summary dismissal, since Section 44(4)(g) requires proof of a criminal offence and none was proved or charged, and the Respondent had already recovered the moneys through salary deductions. On process, the Court found no evidence of an invitation to a disciplinary hearing; the minutes of the 16/1/2014 meeting did not record a disciplinary hearing, and no decision to terminate was reached at it, breaching Section 41 of the Employment Act. The dismissal was therefore unfair and unjustified. The Court awarded 12 months' salary as compensation (Kshs. 966,000), the NSSF contribution of Kshs. 600 for three months, and costs; pension contribution claims were referred directly to the fund.

Key legal issues

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01

Whether there were valid reasons to warrant dismissal of the Claimant

Holding

There was a valid reason for termination (failure to account for advances) but not for summary dismissal.

Reasoning

The dismissal letter cited Section 44(4)(g) of the Employment Act, which concerns commission of criminal offences, but no criminal offence was proved and the Claimant was never charged. The genuine reason was failure to surrender advances, which the Respondent had partly recovered through salary deductions, undermining the basis for summary dismissal. Termination after due hearing would have been the appropriate course.

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02

Whether due process was followed before dismissal of the Claimant

Holding

No due process was followed; the Claimant was not shown to have been invited to or heard at a disciplinary hearing.

Reasoning

There was no evidence of a letter inviting the Claimant to any disciplinary hearing. The minutes of the 16/1/2014 meeting did not indicate it was a disciplinary hearing, and no decision to terminate was reached at that meeting, yet she was dismissed on 12th February 2014. The requirements of Section 41 of the Employment Act were therefore not satisfied.

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03

What remedies to grant in the circumstances

Holding

The Claimant was awarded 12 months' salary as compensation for unfair dismissal, the NSSF contribution, and costs.

Reasoning

Having found the dismissal unfair and unjustified, the Court applied Section 49-type compensation of 12 months' salary at Kshs. 80,500. Pension claims were referred to the fund directly, and the NSSF contribution of Kshs. 600 for three specified months was awarded.

p. 5

Legal principles established

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  • An employer must prove the reason for termination; where it fails, the termination is deemed unfair under Section 45.
  • The due process requirements of Section 41 apply even to summary dismissal; a dismissal without a proven disciplinary hearing is unfair.
  • Section 44(4)(g) summary dismissal requires proof of commission of a criminal offence.

Court orders

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  1. 1.Respondent to pay the Claimant 12 months' salary as compensation for unfair dismissal, Kshs. 966,000/= (12 x 80,500).
  2. 2.Claims for contribution from pension to be claimed directly from the fund.
  3. 3.NSSF contribution of Kshs. 600/= for March 2007, February 2009 and August 2013 to be paid.
  4. 4.Costs of the case to the Claimant.

Authorities

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Legislation

  • Employment Act (Cap 226)Section 44
  • Employment Act 2007Section 45
  • Employment Act 2007Section 43
  • Employment Act 2007Section 41
  • Employment Act 2007Section 44(4)(g)
  • Employment Act 2007Section 44(3) or (4)

Cases cited (1)

  • Isaac Adede Opany vs. Nelson Andayi Havi t/a Havi & Company Advocates
    Cause No 2040 of 2013 (UR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act Cap 226 / 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, "Esther Omariba v Marie Stopes Kenya Limited [2016] KEELRC 988 (KLR)", Case Analysis (2016). Cause No. 2011 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/988/eng@2016-07-05

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