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ELRCPartially AllowedCause No 52 of 2015· [2018] KEELRC 391 (KLR)

Zacheus Okoth Oketch v Sustainable Aid In Africa International [2018] KEELRC 391 (KLR)

Employment and Labour Relations Court
6 December 2018
MOMaureen OnyangoMNMathews Nderi Nduma
3,275 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 found the dismissal procedurally unfair because the employee never got a hearing, but denied compensation because he had worked less than 13 months.

What this practically means

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Executive summary

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The claimant, employed on 20th March 2014 as a programme manager at a gross salary of Kshs.180,000, sued for damages for wrongful dismissal, withheld December 2014 salary of Kshs.28,000, pay for the remainder of his contract, a certificate of service and costs, contending his services were terminated on 9th January 2015 without a fair hearing and after unlawful deduction and coerced contract revision. The respondent admitted the employment relationship but justified the termination as summary dismissal for gross misconduct — insubordination, dereliction of duty and falsely certifying works not done — and justified the deduction as recovery of unaccounted imprest. The court framed two issues: whether the termination was unfair and whether the claimant was entitled to the orders sought. On the evidence, minutes of staff meetings established that the claimant was to present a report to the board on 24th December 2014 and failed to do so, which the court found justified disciplinary action under Section 43 of the Employment Act. However, the claimant was never invited to a disciplinary hearing, breaching Section 41 and rendering the termination procedurally unfair. No compensation was awarded because the claimant had served only about 8 months, below the thirteen-month threshold in Section 45(3), and was himself the author of the termination. The Kshs.28,000 deduction was upheld as a lawful recovery of unaccounted imprest under the Finance Manager's circular. For the remainder of the contract, the court awarded only salary to the end of January 2015, the claimant having admitted knowledge that programme staff contracts would end on 31st January 2015. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the termination was substantively justified under Section 43 of the Employment Act

Holding

Substantive justification existed for taking disciplinary action: the claimant, a new employee on extended probation, failed to prepare and present a report to the board meeting on 24th December 2014.

Reasoning

Minutes of staff meetings of 12th and 16th December 2014, which the claimant attended, fixed presentations for 24th December 2014 and named him as convenor of the Technical team. He acknowledged attending the 22nd December meeting at which the date was fixed, yet neither prepared nor presented the report. The court found this, together with his extended probation and short service, justified disciplinary action under Section 43.

p. 4
02

Whether the termination was procedurally fair under Section 41 of the Employment Act

Holding

The termination was procedurally unfair because the claimant was not given a hearing as envisaged under Section 41.

Reasoning

RW1 admitted the claimant was not invited to any disciplinary hearing. The claimant contended he responded to the show cause notice by email on 7th January 2015, but the court found the letter's mode of service unexplained since the respondent denied receiving it. Regardless, no hearing was afforded, breaching Section 41 and rendering the termination procedurally unfair despite substantive justification.

p. 4
03

Whether the claimant was entitled to compensation under Section 45(3)

Holding

No compensation awarded because the claimant had not been continuously employed for at least thirteen months and was himself the author of the termination.

Reasoning

Section 45(3) restricts the right to complain of unfair termination to employees with at least thirteen months' continuous employment. The claimant had served only about 8 months. The court also took into account that his own conduct (failure to present the report) led to the termination, making an award of compensation unreasonable.

p. 4
04

Whether the deduction of Kshs.28,000 from December 2014 salary was lawful

Holding

The deduction was justified as recovery of unaccounted imprest under the Finance Manager's circular to staff.

Reasoning

The claimant admitted taking the imprest and did not deny failing to account for the money meant for payment of artisans, nor did he deny receiving the memo of 2nd December 2014. Paragraph (g) of that circular authorised recovery of unaccounted imprest from staff dues including salary without prior consultation. The claimant therefore had no basis to complain of the recovery.

p. 5

Legal principles established

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  • Failure to give an employee a hearing as envisaged under Section 41 of the Employment Act renders a termination procedurally unfair even where substantive justification under Section 43 exists.
  • An employer may recover unaccounted imprest from an employee's salary where the employer's policy provides for such recovery without prior consultation.

Court orders

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  1. 1.I therefore award the claimant salary to the end of January 2015.
  2. 2.Each party will bear its costs.

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 44(4)(d)
  • Employment Act, 2007Section 44(4)(e)
  • Employment Act, 2007Section 45(3)

Cases cited (6)

  • Esther Wambui Karongo vs. Palbina Tours and Travel Limited
    (2014) eKLR
  • Sims v. the Board of Trustees Holly Springs Municipal Separate District School
    414 SO. 2d 431 [Miss. 1982]
  • Patrick Njuguna Kamuki v. Del Monte Kenya Limited
    Industrial Court Cause Number 953 of 2011
  • Geoffrey Muguna Mburugu v The Attorney General
    Civil Case Number 3472 of 1994
  • Principal and B.O.G Machakos Teachers College v Wainbua Muange
  • Dede Esi Annie Amanor-Wilks —v- Action Aid International
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute over wrongful termination of employment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Zacheus Okoth Oketch v Sustainable Aid In Africa International [2018] KEELRC 391 (KLR)", Case Analysis (2018). Cause No 52 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/391/eng@2018-12-06

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