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ELRCPartially AllowedCause No. 2004 of 2015· [2018] KEELRC 1204 (KLR)

Anthony Omari Ongera v Teachers Service Commission [2018] KEELRC 1204 (KLR)

Employment and Labour Relations Court of Kenya
20 April 2018
3,095 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 refused to reinstate a TSC employee dismissed for taking his employer's water without permission, but ordered payment of all unpaid salary.

What this practically means

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Executive summary

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The claimant, employed by the Teachers Service Commission as an Administrative Officer III, sought reinstatement with full benefits and payment of due salaries following his dismissal by letter dated 17th February 2015. The dismissal arose from an incident of 19th December 2012 in which the claimant, while off duty, drove into the TSC headquarters after hours and fetched water for personal use; this occurred against the backdrop of the theft of cisco switches worth approximately Kshs.18 million, for which investigations implicated him. He was interdicted three times, invited to a disciplinary hearing before a panel on 30th January 2015 where he presented a defence and cross-examined witnesses, dismissed with effect from 30th January 2015, and his appeal was rejected on 10th August 2015. The court framed a single issue: whether the claimant should be reinstated and paid due salaries. Applying section 44(4)(g) of the Employment Act and the authorities of Hassan Mustapha Backhit v Hippora Business Solutions and Charles Njagi Nyaga v Air Connection Limited, the court held that the claimant's admission of unauthorised after-hours access and taking the employer's property for personal use amounted to gross misconduct justifying summary dismissal; the permission of guards or police could not excuse it. Procedural fairness under section 41 was satisfied. Reinstatement was therefore refused. However, the court held the dismissal took effect on 17th February 2015 when the letter was received, and ordered payment of salaries due up to that date plus unpaid half salary during interdiction within 45 days, with each party bearing its own costs.

Key legal issues

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01

Whether the claimant's dismissal was for lawful cause

Holding

Yes - the claimant admitted accessing the premises after hours without authority and taking the employer's property (water) for personal use, which constitutes gross misconduct

Reasoning

The court found the claimant's admission of unauthorised entry outside working hours and taking the employer's property for personal use without the employer's consent could not be justified by the permission of security guards or police, who had no supervisory authority over him. Such conduct falls within section 44(4)(g) of the Employment Act as conduct to the detriment of the employer's property, justifying summary dismissal.

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02

Whether procedural fairness was observed in the dismissal

Holding

Yes - the claimant was interdicted, allowed to file a defence, invited to a disciplinary hearing where he cross-examined witnesses, and allowed to appeal

Reasoning

The court reviewed the disciplinary process: the claimant was served with interdiction letters, invited by notice of 8th January 2015, appeared before a disciplinary panel on 30th January 2015, presented his defence and cross-examined witnesses, and lodged an appeal which was considered and rejected. This satisfied the requirements of section 41 of the Employment Act and the fair-hearing entitlement.

p. 4
03

The effective date of dismissal and payment of due salaries

Holding

The dismissal takes effect from 17th February 2015, the date the claimant received the letter, and all due wages as of that date plus any unpaid half salary during interdiction are payable

Reasoning

Although the disciplinary decision was taken on 30th January 2015, the claimant only learned of it upon receipt of the letter dated 17th February 2015, so termination should take effect on that later date. The letter did not address the unpaid half salary during interdiction, so all due wages as of 17th February 2015 remain payable notwithstanding the justified dismissal.

p. 4

Legal principles established

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  • Where an employee, on his own admission, engaged in unauthorised conduct prohibited in law, dismissal is a justified sanction and reinstatement is unavailable
  • Taking away an employer's property without prior authority amounts to gross misconduct justifying summary dismissal under section 44(4)(g) of the Employment Act

Court orders

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  1. 1.The claim seeking reinstatement is dismissed
  2. 2.Salaries due to the claimant up and until 17th February 2015 to be paid
  3. 3.Any unpaid half salary during interdiction to be paid within 45 days from the date of the judgment
  4. 4.Each party shall bear own costs

Authorities

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Legislation

  • Employment ActSection 44(3) and (4), including 44(4)(g)
  • Employment ActSection 41(1)
  • Teachers Service Commission Actnull
  • TSC Code of Conduct and Ethics for Secretariat StaffRegulation 20 of Part III; Regulation 55(3)
  • Code of Regulations for Secretariat Staffrevised 2006
  • TSC Security Policy2006

Cases cited (2)

  • Hassan Mustapha Backhit versus Hippora Business Solutions (E.A) Limited
    [2015] eKLR
  • Charles Njagi Nyaga versus Air Connection Limited
    [2016] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; TSC Code of Conduct and Ethics for Secretariat Staff)

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, "Anthony Omari Ongera v Teachers Service Commission [2018] KEELRC 1204 (KLR)", Case Analysis (2018). Cause No. 2004 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1204/eng@2018-04-20

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