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ELRCAllowedCause No. 15 of 2016· [2017] KEELRC 1669 (KLR)

Anthony Kelly Muema v Airtel Networks Kenya Limited [2017] KEELRC 1669 (KLR)

Employment & Labour Relations Court of Kenya
21 February 2017
3,391 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 Airtel unfairly sacked an employee, ordering over Kshs.1.2 million in compensation because the employer never disclosed key evidence.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2006 (initially through Computrain Secretarial Services Limited) and last earning a basic salary of Kshs.91,208.00, was terminated on 28th December, 2015 for alleged absenteeism over three days. He explained that he was stranded in Kitui after floods swept away a bridge, and testified that he contacted his line manager and the human resource department upon regaining access to his phone. He claimed the termination was premeditated, linked to downsizing and to his role as a witness for the respondent in an earlier case brought by colleagues, in which his truthful testimony did not favour the respondent. The respondent maintained the absence without leave or explanation breached his contract and that the disciplinary process, conducted per its Disciplinary Procedure and Consequence Management Policy and section 44(4)(a) of the Employment Act, was fair. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. It held the claimant's evidence stood unchallenged, the respondent's undisclosed call logs and CDRs were unreliable as they were never produced in court, and the disciplinary process and appeal fell short of procedural fairness. Finding the termination substantively and procedurally unfair, the court allowed the claim, issuing a declaration of unfair termination and awarding twelve months' compensation (Kshs.1,094,494.00), one month's pay in lieu of notice (Kshs.91,208.00) and 17 days' untaken leave (Kshs.51,685.00), with costs to the respondent.

Key legal issues

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01

Substantive fairness of termination

Holding

The termination was substantively unfair: the reasons given (failure to contact the line manager and CDR/call log evidence placing the claimant in Nairobi) were not proved.

Reasoning

The claimant's testimony that he called his line manager and the human resource department and explained his predicament (being stranded in Kitui after floods) remained unchallenged; the line manager did not testify. The respondent had the capacity to produce call logs and CDRs to rebut this but chose not to. Evidence not tabled in court cannot found a termination, so the reason for termination was unproved under sections 43(1) and 45(2) of the Employment Act.

p. 4
02

Procedural fairness of termination

Holding

The disciplinary process and appeal were procedurally unfair because the employer relied on call log extracts not disclosed to the claimant, and the appeal was not handled as the disciplinary policy required.

Reasoning

Section 41(2) requires the employer to hear and consider representations; the claimant was entitled to see the evidence relied on. The respondent's own policy required production of any evidence to the employee and an appeal panel including a member selected by the employee. These safeguards were ignored, and the appeal was summarily dismissed, rendering the process flawed under section 45(5).

p. 5
03

Relief and compensation

Holding

Having found unlawful termination, the court awarded the reliefs sought: 12 months' compensation, one month's pay in lieu of notice, and 17 days' untaken leave.

Reasoning

Once termination is found unfair, the claimant becomes entitled to the relief sought. The court awarded Kshs.1,094,494.00 as twelve months' compensation (equivalent to the maximum under section 49 of the Employment Act), Kshs.91,208.00 for notice pay rather than the two months claimed, and Kshs.51,685.00 for untaken leave, with costs to the respondent.

p. 6

Legal principles established

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  • Where an employee alleges unfair termination, the burden shifts to the employer to prove the reason for termination and that it was for a justifiable cause and done through fair procedure.
  • An employee in disciplinary proceedings is entitled to all information, data, evidence and documentation that the employer intends to rely on, including call logs and CDRs.
  • Evidence (such as call logs and CDRs) not produced in court cannot be used as a basis for termination and is unreliable as evidence.

Court orders

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  1. 1.A declaration that the termination of the claimant by the respondent was wrongful, unfair and unlawful in the circumstances.
  2. 2.Twelve months compensation for unlawful termination of employment of Kshs.1,094,494.00.
  3. 3.One month's pay in lieu of notice of Kshs. 91,208.00.
  4. 4.17 days untaken leave of Kshs. 51,685.00.
  5. 5.Costs of the claim to be borne by the respondent.

Authorities

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Legislation

  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 45(5)
  • Employment Act, 2007section 41(1) and (2)
  • Employment Act, 2007section 44(3) and (4)(a)

Cases cited (1)

  • Rebecca Ann Maina & 2 Others Versus Jomo Kenyatta University of Agriculture & Technology
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (jurisdiction of the court challenged by respondent but not pursued)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anthony Kelly Muema v Airtel Networks Kenya Limited [2017] KEELRC 1669 (KLR)", Case Analysis (2017). Cause No. 15 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1669/eng@2017-02-21

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