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ELRCPartially AllowedCause No 605 of 2015· [2016] KEELRC 1038 (KLR)

Rufus Kaimenyi Joseph v Kenya Ports Authority Sports Club Mbaraki [2016] KEELRC 1038 (KLR)

Employment and Labour Relations Court
24 June 2016
OMONESMUS MAKAU
1,950 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court upheld a club employee's retirement for threatening a colleague, awarding notice pay and service benefits but rejecting compensation for unfair termination.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent club from 1993 as a waiter and later Head Waiter, was retired in the public interest on 15.10.2014 following a disciplinary hearing conducted after his acquittal in criminal case No. 1024 of 2013, in which he was charged with assaulting a fellow employee. He sued for compensation for unfair termination, salary for 16 years to normal retirement, underpayment, notice pay, accumulated leave, overtime, a declaration of 20 years' service and a certificate of service. The Respondent maintained the retirement was lawful under its Disciplinary Handbook, citing the Claimant's disturbance at the workplace, his threat to kill a colleague, and his poor interpersonal relations compounded by alcohol, as well as prior misconduct in 2005. The court framed three issues: valid reason, fair procedure, and reliefs. It found on a balance of probability that there was a valid and fair reason for termination under section 44(g) of the Employment Act, and that the procedure under section 41 was satisfied since the Claimant was invited to a personal hearing and attended with counsel. Claims for compensation, 16 years' lost salary, underpayment, leave and overtime were dismissed for lack of proof or legal basis. Notice pay was granted as prayed at kshs. 28,465, and a declaration of 20 years' service was made because the Claimant's 2005 exit was a reinstatement, not fresh employment. A certificate of service was ordered, with half costs and interest to the Claimant.

Key legal issues

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01

Valid and fair reason for retirement in the public interest

Holding

There was a valid and fair reason: the court found on a balance of probability that the Claimant created a disturbance and threatened a colleague, and had a history of similar misconduct, justifying termination under section 44(g) of the Employment Act.

Reasoning

The court relied on the retirement letter's stated reasons, testimony of four defence witnesses, the criminal case proceedings despite the Claimant's acquittal, and prior letters of 2005 evidencing earlier misconduct. The civil standard of balance of probability applied; acquittal on a criminal charge did not preclude a finding of misconduct for employment purposes. Threatening fellow employees while on duty constituted misconduct against the employer under section 44(g).

p. 3
02

Procedural fairness under section 41 of the Employment Act

Holding

Procedure was fair: the Claimant was invited to a personal hearing before the Respondent's committee, attended with counsel of his choice, and the hearing was conducted with recorded proceedings.

Reasoning

Section 41 requires explanation of the offence and an opportunity to be represented. The invitation letter of 4.8.2014 offered accompaniment by a colleague; the Claimant instead brought his lawyer. Typed proceedings of the committee hearing existed. The court held the Respondent was fair and even lenient in retiring rather than summarily dismissing the Claimant for serious misconduct.

p. 3
03

Length of service declaration

Holding

The Claimant served for 20 years (1993–2014) because his 2005 termination ended in reinstatement, which under the court's earlier decision in ICC 164 of 2012 was not fresh re-employment.

Reasoning

The Respondent contended the Claimant was dismissed in 2005 and re-engaged in 2008 under a new PIN. The court noted its prior decision in ICC 164 of 2012 that the Claimant was reinstated under a lower grade, not re-employed, and no evidence showed that decision had been overturned. Reinstatement continues service as if there were no break, hence a 20-year service declaration.

p. 4

Legal principles established

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  • The effect of reinstating an employee is to continue service as if there was no break in employment.
  • An employer who has accorded an employee a personal hearing before a committee, with the option of being accompanied, satisfies the procedural fairness requirements of section 41 of the Employment Act.
  • Salary is payable only for work done unless the prematurely terminated contract was for a fixed term; there is no claim for hypothetical future salary.

Court orders

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  1. 1.Declaration that the Claimant served the Respondent for 20 years between 1993 and 2014
  2. 2.Award of kshs. 28,465 to the Claimant
  3. 3.Half costs of the suit to the Claimant
  4. 4.Interest on the award
  5. 5.Respondent directed to issue the Claimant a Certificate of Service forthwith

Authorities

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Legislation

  • Employment Actsection 44(g)
  • Employment Actsection 41
  • Employment Actsection 51
  • Clubs Disciplinary Handbook 2014clause 49(g)/K9(g) and clause KI; clause K12(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (EA) - not expressly cited by provision in the judgment

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, "Rufus Kaimenyi Joseph v Kenya Ports Authority Sports Club Mbaraki [2016] KEELRC 1038 (KLR)", Case Analysis (2016). Cause No 605 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1038/eng@2016-06-24

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