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ELRCPartially AllowedCause No. 102 of 2017· [2018] KEELRC 183 (KLR)

Zablon Bisonga Mose v Real Careers Limited [2018] KEELRC 183 (KLR)

Employment and Labour Relations Court of Kenya
18 December 2018
MMM. Mbaru
1,182 words in judgment
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The bottom line

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A Kenyan court confirmed employers cannot sack workers over criminal charges without notice and a hearing, awarding the employee notice pay and compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a Mason from October 2011 on a daily wage of Ksh.545.00, sued after his employment ended on 1st November 2016. Following allegations that goods brought into the workshop were stolen, the claimant and colleagues were arrested; police investigations exonerated him and a workmate, Geoffrey Ngunjiri, was charged, with the claimant bonded as a state witness. On reporting back to work he was sent away with promises of recall that never materialised. The respondent never entered appearance or filed a defence despite service, and the claim was heard undefended under rule 15 of the ELRC (Procedure) Rules, 2016. The court held that criminal proceedings and workplace disciplinary processes are distinct: even where an employee is arrested and charged, the employer must issue notice under section 35, give a hearing under section 41, and act on valid reasons under section 43 of the Employment Act, 2007; failure renders termination unfair under section 45. Termination was therefore held unfair. The court awarded notice pay of Ksh.10,005.00 and compensation of Ksh.30,000.00 (three months' gross pay), plus costs. It refused the October 2016 salary claim as the claimant's own evidence showed he was absent from work that month; refused the leave claim as bare and unexplained; and refused the NSSF contributions claim as statutory dues payable to a statutory body rather than the employee.

Key legal issues

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01

Whether termination without notice or hearing following a criminal arrest is unfair

Holding

Yes - termination of the claimant's employment was unfair for want of due process under sections 41 and 43 of the Employment Act

Reasoning

Criminal proceedings and workplace misconduct are distinct processes. Regardless of the employee's arrest or charge, the employer must comply with sections 35, 41 and 43 of the Employment Act: issue notice, give a hearing and terminate only on valid and genuine reasons. The claimant was arrested, released and reported back to work but was sent away without notice, hearing or reasons. Such termination is unfair under section 45 of the Employment Act.

p. 2
02

Remedies payable where termination is unfair and undefended

Holding

Notice pay of Ksh.10,005.00 and compensation equivalent to three months' gross pay (Ksh.30,000.00) awarded; other heads refused

Reasoning

Notice pay flows from the absence of due process. Compensation for unfair termination was assessed at three months' gross pay as reasonable and appropriate. The October 2016 salary claim was defeated by the claimant's own admission of absence from work; the leave claim was unexplained and bare; and the NSSF claim was misconceived since statutory contributions are payable to the statutory body, not the employee.

p. 2

Legal principles established

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  • Even where an employee is arrested and charged with a criminal offence, the employer must still issue notice and give a hearing under sections 35, 41, 43 and 44 of the Employment Act before addressing workplace misconduct
  • Internal disciplinary proceedings are based on the contract of employment and decided on a balance of probability, unlike criminal proceedings requiring proof beyond reasonable doubt

Court orders

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  1. 1.Judgment entered for the claimant for compensation of Kshs.30,000.00
  2. 2.Notice pay of Ksh.10,005.00 awarded
  3. 3.Costs of the suit awarded to the claimant

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 15

Cases cited (2)

  • Caliph O Ogega versus National Social Security Fund
    Cause 280 of 2013
  • Attorney General & Another versus Andrew Maina Githinji & Another
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; claim filed under the Employment Act, 2007; claim heard under rule 15 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Zablon Bisonga Mose v Real Careers Limited [2018] KEELRC 183 (KLR)", Case Analysis (2018). Cause No. 102 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/183/eng@2018-12-18

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