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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 1702 (KLR)
Vikash Bhagani v Dhl Global Forwarding & 9 Others [2016] KEELRC 1702 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Applicant, Vikash Bhagani, moved the Employment and Labour Relations Court by Notice of Motion dated 4/12/2015 seeking to stay disciplinary action by his employer and to stay Criminal Case No. 3257 of 2015. He had been arrested on 27/10/2015 on the direction of the Director of Public Prosecutions, arraigned in court, and suspended by his employer on 29/10/2015. He argued that suspension solely on account of arraignment, without prior internal hearing, breached labour rights and fair procedure. The Respondents countered that the employer acted to pave way for investigations; the Applicant was issued a show-cause letter on 16/11/2015, responded on 23/11/2015, and attended a disciplinary hearing on 3/12/2015 with his advocate, choosing to remain silent. Justice Hellen Wasilwa framed the sole issue as whether the Court could stop an employer from proceeding with administrative action against an employee. Relying on Section 41 of the Employment Act and Article 50 of the Constitution, and applying the Rebecca Maina case, she held that internal disciplinary proceedings are non-judicial and courts interfere only where the process is flawed. Finding that two days' notice of the disciplinary hearing was inadequate, the Court directed discontinuation of the disciplinary process but permitted it to be initiated afresh with clear charges and adequate time and opportunity to be heard. Judgment was delivered on 9th February 2016.
Key legal issues
#01
Whether the Court can intervene in an employer's internal disciplinary process
Holding
The Court will not police internal disciplinary mechanisms but has a duty to ensure the process is fair; where the process denies the employee adequate time, it may direct discontinuation and fresh initiation.
Reasoning
The court applied Section 41 of the Employment Act and Article 50 of the Constitution, holding that disciplinary proceedings must accord the employee clear charges, opportunity to respond, and sufficient preparation time. The Applicant was summoned on 1/12/2015 to appear on 3/12/2015, which the court found inadequate, warranting limited intervention.
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Legal principles established
#- Internal disciplinary proceedings are non-judicial in nature and courts will only interfere where the process is flawed
- An employee must be given adequate time and opportunity to prepare and present his case in disciplinary proceedings
Court orders
#- 1.The disciplinary process already started be discontinued
- 2.The disciplinary process may be initiated afresh according to the law with the Applicant being clearly informed of the charges against him and accorded adequate time and opportunity to present his case
- Jurisdiction invoked
- Employment and labour relations jurisdiction; Article 50 of the Constitution and Sections 35-51 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vikash Bhagani v Dhl Global Forwarding & 9 Others [2016] KEELRC 1702 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1702/eng@2016-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.