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ELRCPartially AllowedPetition dated 9th February 2017 (amended) – Employment and Labour Relations Court· [2018] KEELRC 1026 (KLR)

Josephine Ngatia v Executive Director of the Non-Governmental Organisation Co-ordination Board & another [2018] KEELRC 1026 (KLR)

Employment and Labour Relations Court
5 October 2018
3,345 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 a manager's dismissal unfair because her employer couldn't prove she skipped work, awarding her 12 months' salary.

What this practically means

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Executive summary

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The petitioner, formerly Human Resources and Development Manager of the 2nd respondent, NGOs Co-ordination Board, challenged a transfer to Garissa ordered by the 1st respondent, the CEO. She obtained interim orders stopping the transfer, and the respondents later withdrew the transfer letter. Thereafter she was denied access to her workstation, suspended on allegations of absconding duty for 13 days in August 2016, and, after a disciplinary hearing before a committee including the 1st respondent, summarily dismissed on 11th November 2016 for gross misconduct. She amended her petition to seek declarations of violation of Articles 10, 73 and 75 of the Constitution, a declaration of unfair termination, compensation and reinstatement. The respondents relied on authorities on valid reason, procedural and substantive fairness and the Anarita Karimi threshold for constitutional pleading. The court framed four issues: valid reason for summary dismissal, victimisation, constitutional violations, and remedies. It found the respondents failed to prove the alleged abscondment - the contested internal memo's alleged author was not called to testify - and held the dismissal unlawful and unfair. It found the petitioner was victimised, the dismissal resulting from her refusal to go on transfer, which stemmed from her refusal to certify the 1st respondent's suspect academic certificates and her appearance before the EACC. However, it held there was insufficient evidence of constitutional violations and dismissed those prayers. It awarded maximum compensation of 12 months' salary (Kshs.2,534,563.80), declined reinstatement as an alternative remedy, and awarded the petitioner costs.

Key legal issues

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01

Valid reason for summary dismissal

Holding

The respondents failed to prove the alleged abscondment; the dismissal was unlawful and unfair.

Reasoning

The petitioner and her witness testified she was absent with permission of her supervisor. The internal memo alleging absences was contested and its alleged author, who was on study leave, was not called to testify, and the witness statement containing it was not subjected to cross-examination. The respondents therefore did not discharge the burden of proving a valid reason for dismissal.

p. 4
02

Victimisation

Holding

The petitioner was victimised by the 1st respondent; the dismissal resulted from her refusal to go on transfer, which itself flowed from her refusal to certify suspect academic certificates and her appearance before EACC.

Reasoning

The petitioner's testimony that the transfer, denial of access to her workstation, show cause letter, suspension and dismissal followed her refusal to certify the 1st respondent's academic papers and her EACC appearance was corroborated by the Deputy Executive Director (CW2). Those averments, including that no proper investigations were carried out, were not rebutted by the respondents.

p. 5
03

Alleged constitutional violations (Articles 10, 73 and 75)

Holding

Claim of constitutional violation dismissed for lack of sufficient evidence.

Reasoning

Although the 1st respondent's conduct may have been hostile, the petitioner did not adduce sufficient evidence enabling the court to make a finding of violation of the cited constitutional provisions. Consistent with the Anarita Karimi threshold relied on by the respondents, precise pleading and proof of the manner of breach is required.

p. 5
04

Remedies

Holding

Maximum compensation of 12 months' salary (Kshs.2,534,563.80) awarded; reinstatement declined as an alternative remedy.

Reasoning

The court took into account length of service, the manner of termination and legitimate expectations after long clean service in awarding the maximum 12 months' compensation. Since compensation and reinstatement are alternative remedies and compensation was awarded, reinstatement was not considered viable.

p. 5

Legal principles established

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  • An employer bears the burden of proving the valid reason relied upon for summary dismissal; failure to do so renders the dismissal unlawful and unfair.
  • Compensation and reinstatement are alternative remedies for unfair termination.
  • Maximum compensation may be awarded taking into account length of service, manner of termination and the employee's legitimate expectations after long clean service.

Court orders

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  1. 1.Declaration that the dismissal of the petitioner was unfair (compensation for unfair termination awarded)
  2. 2.Finding that the petitioner was victimised by the 1st respondent
  3. 3.Award of maximum compensation of 12 months' salary at Kshs.2,534,563.80 for unfair termination
  4. 4.Dismissal of the prayer for declarations of violation of Articles 10, 73 and 75 of the Constitution
  5. 5.Decline of the prayer for reinstatement
  6. 6.The respondents shall pay the petitioner's costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 73, 75
  • Employment Actsections 5(7)(c), 41, 44, 45, 46
  • NGOs Co-ordination Board Human Resource ManualClause 10.3

Cases cited (4)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Nampak Corrugated Wadeville –V- Khoza
    (JA14/98) [1998] ZALAC 24
  • Peter Kamwi –v- Standard Group Limited
    [2016] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014] eKLR, Civil Appeal No. 50 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes and alleged constitutional violations in the employment relationship

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, "Josephine Ngatia v Executive Director of the Non-Governmental Organisation Co-ordination Board & another [2018] KEELRC 1026 (KLR)", Case Analysis (2018). Petition dated 9th February 2017 (amended) – Employment and Labour Relations Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1026/eng@2018-10-05

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