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ELRCPartially AllowedCause (number not stated in judgment)· [2016] KEELRC 1686 (KLR)

Zackaria Kiarie Gathengera v East African Mission Orphanage [2016] KEELRC 1686 (KLR)

Employment and Labour Relations Court
19 February 2016
RSRadido Stephen
734 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 upheld an orphanage's dismissal of its caretaker as fair, but ordered payment of Kshs 62,922 agreed during conciliation.

What this practically means

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Executive summary

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The Claimant sued the Respondent, an orphanage, alleging unfair termination of employment and breach of employment rights arising from a Notice of Intent to Terminate dated 14 June 2013 citing unsatisfactory performance and conduct. The Respondent admitted in submissions that the Claimant was treated as an employee. The Court framed two issues: whether the dismissal was unfair, and appropriate remedies including entitlements arising from the employment relationship. On procedural fairness, the Court found the Respondent informed the Claimant of the contemplated dismissal and its reasons, and afforded him an opportunity to make written and oral representations; the Claimant involved his union and the dispute went to conciliation, meeting the statutory threshold under section 41 of the Employment Act, 2007. On substantive fairness, the Respondent's three witnesses testified to unauthorised access to hostels housing minors, theft of vegetables from a greenhouse under the Claimant's charge, and felling of trees on leased property; the Claimant did not controvert that evidence, so the reasons were held valid and fair. On remedies, the Court declined pay in lieu of notice and compensation because the termination was fair, but enforced a conciliation agreement signed on 18 October 2013 before the Labour Officer covering leave, overtime, off duties and public holiday entitlements, awarding the Claimant Kshs 62,922/-. Each party was ordered to bear its own costs. The claim was thus partially allowed: dismissal of the unfair termination head, success on the agreed dues.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The dismissal was procedurally fair under section 41 of the Employment Act

Reasoning

The Respondent issued a Notice of Intent to Terminate setting out the reasons (unsatisfactory performance and conduct) and invited representations within 7 working days. The Claimant involved his union; a meeting was held and the dispute referred to the County Labour Officer. The Court was satisfied the Claimant was informed of the contemplated dismissal and its reasons and was given an opportunity to make written and oral representations.

p. 2
02

Substantive fairness of the dismissal

Holding

The Respondent proved valid and fair reasons for the termination

Reasoning

The reasons related to performance and conduct: unauthorised access to hostels housing minors past 9.00pm despite instructions, theft of vegetables from a greenhouse under his charge, and being found felling trees on leased property with an unknown person. The Claimant did not challenge or controvert the testimonies of the Respondent's three witnesses, so the reasons were proved.

p. 2
03

Entitlements under the conciliation agreement

Holding

The Claimant is entitled to the dues agreed before the Labour Officer on 18 October 2013

Reasoning

The parties went through conciliation and signed an agreement covering leave, overtime, off duties and public holiday entitlements. The Respondent gave no reasons why the agreement should not be enforced, so the Court enforced it in the sum of Kshs 62,922/-, while refusing notice pay and compensation because the termination was fair.

p. 2

Legal principles established

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  • An employer meets the procedural threshold under section 41 of the Employment Act where it notifies the employee of the contemplated dismissal and the reasons, and affords an opportunity to make representations in writing or orally
  • Where an employee does not controvert the employer's evidence on the reasons for termination, the employer's reasons stand proved as valid and fair
  • A settlement reached during conciliation before the Labour Officer is enforceable where no reasons are advanced against it

Court orders

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  1. 1.A declaration that termination of the Claimant's employment was fair
  2. 2.Award to the Claimant of Kshs 62,922/- as agreed before the Labour Officer on 18 October 2013
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and employment entitlements claim)

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, "Zackaria Kiarie Gathengera v East African Mission Orphanage [2016] KEELRC 1686 (KLR)", Case Analysis (2016). Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1686/eng@2016-02-19

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