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ELRCPartially AllowedCause (memorandum of claim filed 31.07.2015)· [2016] KEELRC 1075 (KLR)

George Kaleve Musyoki v Nolturesh Loitoktok Water & Sanitation Company Limited [2016] KEELRC 1075 (KLR)

Employment and Labour Relations Court
24 June 2016
BOByram Ongaya
1,844 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a security officer fired for refusing a transfer, because his employer skipped proper procedure and had no valid reason.

What this practically means

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Executive summary

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The claimant, a security officer and union shop steward employed since 2003 through successive water sector entities, was dismissed by the respondent by letter dated 13.02.2015 for refusing to report to a new duty station at Kalanzoni following rapid successive redeployments in January 2015. He sued through the Kenya Union of Commercial Food and Allied Workers seeking reinstatement, alternatively 12 months' compensation and terminal benefits totalling Kshs. 18,323,000. The respondent sought dismissal of the claim. The court framed two issues: whether the termination was unfair, and entitlement to remedies. On the first, it found the respondent had not justified the successive redeployments, had cited a fictitious deployment letter in the show-cause letter, and had failed to discredit the claimant's grievances — insecurity at Kalanzoni, lack of financial facilitation for the transfer, and intimidation linked to his union role and pending Cause No. 835 of 2013. The respondent also failed to prove any absence from duty. Procedurally, the claimant was denied the opportunity to appear at the disciplinary hearing accompanied by a union representative as provided in section 41 of the Employment Act, and there was no valid reason for termination under section 43. The termination was held unfair on both substantive and procedural grounds. On remedies, the court found no bar to reinstatement and granted it without loss of benefits effective 13.02.2015, plus withheld salaries of Kshs. 1,004,000 and salary arrears of Kshs. 753,000, payable by 01.09.2016 failing interest at court rates from 05.08.2015. Judgment was entered for the claimant with costs.

Key legal issues

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01

Whether the termination was unfair

Holding

Termination was unfair both procedurally and for want of a valid reason

Reasoning

The court found the respondent issued rapid successive redeployment letters without justification and relied on a fictitious deployment letter in the show-cause letter. The claimant's grievances about insecurity, non-facilitation and union protection were valid. The respondent failed to prove the claimant was absent from duty. Procedurally, the claimant was not allowed a union representative at the disciplinary hearing contrary to section 41, and there was no valid reason under section 43.

p. 3
02

Whether the claimant was entitled to the remedies prayed for

Holding

Reinstatement without loss of benefits plus withheld salaries and arrears was granted

Reasoning

Having served the respondent and its predecessors since 2003 and wishing to continue in employment, and with no bar to reinstatement on the record, the court found reinstatement appropriate, together with unpaid salary arrears as prayed. The alternative monetary compensation claims were therefore unnecessary.

p. 4

Legal principles established

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  • An employer must justify and explain redeployment decisions, and a failure to respond to an employee's valid grievances on redeployment undermines the fairness of a subsequent termination
  • An employee's union involvement cannot constitute a fair reason for termination under section 46 of the Employment Act
  • Denial of the right to be accompanied by a union representative at a disciplinary hearing renders the procedure and termination unfair under section 41 of the Employment Act

Court orders

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  1. 1.Declaration that the termination of the claimant's employment conveyed by the respondent's letter dated 13.02.2015 was unfair and is set aside
  2. 2.Reinstatement of the claimant to his job as security officer without loss of benefits with effect from 13.02.2015, to report to the managing director for deployment not later than 01.07.2015 at 9.00am, continuing in employment without a break in service until lawful separation
  3. 3.Respondent to pay all withheld salaries and allowances effective reinstatement, Kshs. 62,750.00 times 16 months making Kshs. 1,004,000.00
  4. 4.Respondent to pay Kshs. 753,000.00 being outstanding salary arrears for 12 months as at time of termination now set aside
  5. 5.Payment of the sums in (c) and (d) by 01.09.2016, failing which interest at court rates from 05.08.2015 until full and final payment
  6. 6.Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 46(d), (e) and (h)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute (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, "George Kaleve Musyoki v Nolturesh Loitoktok Water & Sanitation Company Limited [2016] KEELRC 1075 (KLR)", Case Analysis (2016). Cause (memorandum of claim filed 31.07.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1075/eng@2016-06-24

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