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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 1266 (KLR)

Daniel Nyamongo Matoka v Moi Teaching & Referral Hospital [2016] KEELRC 1266 (KLR)

Employment and Labour Relations Court
6 May 2016
1,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a hospital worker's dismissal for suspected theft but ordered his employer to pay all wages lost during an unpaid suspension.

What this practically means

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Executive summary

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Daniel Nyamongo Matoka (Claimant) sued Moi Teaching & Referral Hospital (Respondent) in October 2014, alleging his termination of employment on 14 June 2013 was unlawful, irregular, null and void and unfair. The Cause was heard on 2 November 2015 and 27 January 2016. Adopting the Claimant's issues, the Court considered whether the termination procedure was fair, whether the reason was valid, and whether the reliefs sought were payable. On procedure, the Court found the Claimant received an internal memo and a show-cause suspension letter, responded to both, was heard by the Staff Disciplinary Advisory Committee with union representatives present, and appealed, with the dismissal upheld by the Board Chairman. His complaint about the choice of union representative failed, as that choice belongs to the employee and union, and he did not object at the hearing. The process satisfied section 41 of the Employment Act and was procedurally fair. On the reason, the Claimant was found with two wrapped cellular blankets and never explained where he obtained them; unchallenged evidence on ward waste colour-coding undermined his account. The Court held valid and fair reasons were proved. Consequently, reinstatement, pay in lieu of notice, compensation under section 49(1) and a 24% wage increment were all refused. However, relying on the common law rule that suspension without pay without contractual authority is unlawful (following Joseph Otieno Akech v Rai Plywoods and McKenzie v Smith), the Court awarded the Claimant Kshs 191,522/25 as unpaid wages during suspension, with costs to the Claimant. Judgment was delivered in Nakuru on 6 May 2016 by Radido Stephen, Judge.

Key legal issues

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01

Procedural fairness of termination under section 41 of the Employment Act

Holding

The process met the statutory requirements of section 41 and was procedurally fair

Reasoning

The Claimant was issued an internal memo and a suspension/show-cause letter with four allegations, responded to both, was invited to and appeared before the Staff Disciplinary Advisory Committee with union representatives present, and exercised his right of appeal which was upheld by the Board Chairman. His complaint about the choice of union representative failed because that choice belongs to the employee and the union, and he did not object at the hearing itself.

p. 2
02

Validity and fairness of the reason for termination (theft of blankets)

Holding

The Respondent proved valid and fair reasons for termination

Reasoning

The Claimant was found with two wrapped cellular blankets deposited outside the incinerator. His explanations were inconsistent; he never disclosed where he obtained them. Unchallenged evidence showed infectious isolation-ward waste is wrapped in red and yellow, not black, undermining his claim. His failure to explain the source made it probable the blankets were being removed without authority.

p. 2
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Unpaid wages during suspension

Holding

Claimant entitled to Kshs 191,522/25 as unpaid wages during suspension

Reasoning

The extract of the Terms and Conditions of Service Booklet produced did not address pay during suspension. In the absence of contractual authority, suspension without pay is unlawful at common law, as applied in Joseph Otieno Akech v Rai Plywoods (K) Ltd citing McKenzie v Smith. The Court accordingly awarded the unpaid wages for the suspension period.

p. 3

Legal principles established

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  • Where an employee is a member of a union, the employer has no mandate to choose which union representative appears for the employee in disciplinary proceedings
  • Suspension without pay without contractual authority is unlawful under common law
  • An employee alleging entitlement to an oral or face-to-face appeal hearing bears the onus of establishing a contractual or statutory basis for it

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was fair, and dismissal of the heads of relief dependent upon unfairness of termination
  2. 2.Award to the Claimant of unpaid wages during suspension of Kshs 191,522/25
  3. 3.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 49(1)

Cases cited (2)

  • Joseph Otieno Akech v Rai Plywoods (K) Ltd
    (2015) eKLR
  • McKenzie v Smith
    (1976) IRLR 345
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (employment and labour relations cause)

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, "Daniel Nyamongo Matoka v Moi Teaching & Referral Hospital [2016] KEELRC 1266 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1266/eng@2016-05-06

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