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ELRCPartially AllowedCause No. 2141 of 2012· [2018] KEELRC 223 (KLR)

Cosmos Mateya Burundi v Kenyatta National Hospital [2018] KEELRC 223 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen S. Wasilwa
2,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled KNH unfairly dismissed an employee because it failed to hear him, cutting his compensation despite valid grounds.

What this practically means

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Executive summary

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The Claimant, a Clerical Officer employed by the Respondent hospital since 1995, was arrested in January 2011 for allegedly receiving a bribe of Kshs. 6,000 from a patient's relative, interdicted on half salary in February 2011, and dismissed on 25 July 2011 for gross misconduct. The criminal charges were withdrawn in February 2012. He claimed unpaid interdiction salary, 12 months' compensation for wrongful dismissal, pay in lieu of notice, leave pay, pension contributions, costs and interest. The Respondent maintained that the Claimant was summarily dismissed for gross misconduct after investigations, a notice to show cause, and a disciplinary hearing, and that dismissal was fair and procedural. The court found that the arrest and charge gave the Respondent valid reason to dismiss under Section 44(4)(g) of the Employment Act, 2007, holding that withdrawal of criminal charges does not determine guilt in internal disciplinary processes. However, the disciplinary committee sat in the Claimant's absence with no letter inviting him to the hearing, condemning him unheard, so the dismissal was procedurally unfair. The court awarded 2 months' salary as compensation, one month in lieu of notice, unpaid half salary during interdiction, pro-rata leave for six months of 2011, and pension dues, with costs and interest to the Claimant. The claim otherwise failed.

Key legal issues

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01

Whether the Respondent had valid reason for summary dismissal

Holding

Yes - arrest and charge with a criminal offence against the employer's detriment is a valid reason under Section 44(4)(g)

Reasoning

The court found it was not in doubt that the Claimant was arrested and charged with corruption charges. Under Section 44(4)(g) of the Employment Act, an employee suspected on reasonable grounds of committing a criminal offence against the employer's substantial detriment may be summarily dismissed. The Claimant's arrest and charge therefore provided valid reason.

p. 3
02

Whether the dismissal procedure was fair

Holding

No - the Claimant was not heard; the disciplinary committee sat in his absence

Reasoning

Although a show cause letter was allegedly issued, service was unclear and the Claimant denied receipt. There was no letter inviting the Claimant to the disciplinary hearing of 31.5.2011. The committee deliberated and recommended dismissal in his absence, breaching Section 41 due process. The dismissal was therefore unfair despite valid reason.

p. 3

Legal principles established

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  • Withdrawal or discharge of criminal charges is not determinative of whether an employee is guilty of gross misconduct; the employer's internal disciplinary process is independent
  • An employee is entitled to due process before dismissal notwithstanding valid reason; condemning an employee unheard renders dismissal unfair

Court orders

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  1. 1.2 months' salary as compensation for unfair termination of Kshs. 61,058
  2. 2.1 month salary in lieu of notice of Kshs. 30,529
  3. 3.Unpaid ½ salary during interdiction of Kshs. 142,688
  4. 4.Pro-rata leave for year 2011 (6 months) of Kshs. 15,264.50
  5. 5.Pension dues from the Pension Scheme
  6. 6.Respondent to pay costs of the suit plus interest at Court rate from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 35(1), 35(6), 36, 41(1), 43(1), 44, 44(4), 44(4)(g), 45(2)
  • Public Officer Ethics Act2003

Cases cited (6)

  • Kenfreight (E.A) Limited Versus Benson K. Nguti
    (2016) eKLR
  • Carter versus Value Truck Rental (Pty) Limited
  • Sappi Novoboard (Pty) Ltd Versus Bolleurs
  • Premier Medical and Industrial Equipment Limited Versus Winkler
    at 867H
  • Jones Versus East Rand Exyention Gold Mining Company Limited
    1917 TH 325 at 334
  • JD Group Ltd Versus De Beer
    (1996) 17 ILJ 1103 (LAC) at 1112-12
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Cosmos Mateya Burundi v Kenyatta National Hospital [2018] KEELRC 223 (KLR)", Case Analysis (2018). Cause No. 2141 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/223/eng@2018-12-20

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