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ELRCPartially AllowedCause No. 1856 of 2013· [2016] KEELRC 1099 (KLR)

Allan Okuku v Nyayo Tea Zone Development Corporation [2016] KEELRC 1099 (KLR)

Employment and Labour Relations Court
13 June 2016
HWHellen S. Wasilwa
2,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer must prove real reasons for firing a worker, or the dismissal is unfair and the employer pays heavily.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Field Supervisor from June 2004, was summarily dismissed on 9 September 2013 for gross misconduct arising from alleged absence from duty without permission between 18 March and 23 April 2013. His dismissal followed his failure to report to a new station at Kericho after a transfer issued while he was on annual leave, and his appeal against that transfer was not communicated to him until 24 April 2013. The Claimant sought unpaid salary, 12 months' compensation for unfair dismissal, compensation for discrimination, costs and interest. The Respondent maintained the dismissal was lawful under Section 44 of the Employment Act and that procedural requirements under Section 41 were met. The court framed three issues: valid reasons, due process, and remedies. It found due process was followed but no valid reasons existed, since the Respondent was still considering the transfer appeal during the absence and, after the Claimant reported on 24 April 2013, the Zone Manager declined to allocate him duties. Applying Sections 43 and 45(2) of the Employment Act, the court held the termination unfair and unjustified, finding for the Claimant on the unfair dismissal claim. The court awarded unpaid salary of Kshs. 127,518, one month's salary in lieu of notice of Kshs. 24,060, and 12 months' compensation of Kshs. 288,720, totalling Kshs. 440,298, ordered issuance of a Certificate of Service, and directed the Respondent to pay costs. The discrimination claim was not included in the final awards. Judgment was read in open court on 13 June 2016.

Key legal issues

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01

Whether there were valid reasons to warrant the Claimant's summary dismissal

Holding

No valid reasons existed; the alleged absenteeism was excused because the Claimant's appeal against transfer was still under consideration and he had not been allocated duties

Reasoning

The Claimant was dismissed for absence from duty between 18 March and 23 April 2013. The court found that during that period the Respondent was still considering his transfer appeal, and the rejection letter had not been forwarded to him. When he reported on 24 April 2013, the Zone Manager refused to allocate him duties. There was therefore no wrongdoing after 24 April 2013, and the absence before then was vindicated.

p. 4
02

Whether due process was followed before dismissal

Holding

Due process was followed - the Claimant was issued a show cause letter and taken through a disciplinary hearing

Reasoning

The Respondent issued a Notice to Show Cause on 4 June 2013, invited the Claimant to a disciplinary hearing on 19 July 2013, and heard him before dismissal on 9 September 2013. The court held the Claimant was taken through the process, satisfying the procedural limb, but the substantive limb failed for want of valid reasons.

p. 4
03

Whether the termination was unfair under Sections 43 and 45 of the Employment Act

Holding

The termination was unfair and unjustified because the Respondent failed to prove valid and fair reasons

Reasoning

Section 45(2) requires the employer to prove the reason was valid, fair, and that fair procedure was followed. Section 43 places the burden of proving reasons on the employer, failing which the termination is deemed unfair. Having found no valid reasons, the court concluded the dismissal was unfair and awarded remedies including 12 months' salary compensation.

p. 5

Legal principles established

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  • An employer bears the burden of proving valid and fair reasons for termination; failure to do so renders the termination unfair

Court orders

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  1. 1.Unpaid salary for April, May, June, July, August and 9 days of September 2013 at Kshs. 24,060 per month = Kshs. 127,518
  2. 2.One month's salary in lieu of notice = Kshs. 24,060
  3. 3.12 months' salary as compensation for unlawful and unfair termination = Kshs. 288,720
  4. 4.Total award of Kshs. 440,298
  5. 5.Claimant to be issued with a Certificate of Service
  6. 6.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over a claim for unfair dismissal

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, "Allan Okuku v Nyayo Tea Zone Development Corporation [2016] KEELRC 1099 (KLR)", Case Analysis (2016). Cause No. 1856 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1099/eng@2016-06-13

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