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ELRCDismissedCause No 850 of 2012· [2018] KEELRC 1521 (KLR)

Kudhehia Workers v Masinde Muliro University of Science and Technology [2018] KEELRC 1521 (KLR)

Employment and Labour Relations Court
18 July 2018
MOMaureen Onyango
2,478 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 upheld a university driver's dismissal because the disciplinary hearing was fair, union officials participated, and grounds for termination were valid.

What this practically means

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Executive summary

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The claimant union, KUDHEIHA, sued on behalf of grievant Edward Ingutia Otatwa, a driver employed by Masinde Muliro University of Science and Technology since 1st July 2007, contesting his termination following a road accident of 28th July 2009 in which his vehicle was hit by a tractor while he had deviated from the authorised route in the vehicle work ticket. The union sought reinstatement and payment of all dues withheld from termination to reinstatement. The grievant was issued a show-cause letter dated 19th August 2009, invited to a disciplinary hearing on 16th December 2009 on three counts (failing to report an accident, giving false information, and unprocedurally arranging vehicle repairs), found guilty by a disciplinary committee that included KUDHEIHA officials, and terminated with three months' salary in lieu of notice; his appeal was dismissed. The court framed two issues: whether the termination was fair, and whether reinstatement was due. Applying Section 45(2) of the Employment Act, the court found the hearing complied with Section 41 and the CBA - the Branch Secretary had sent apologies and union officials participated in the unanimous decision - and that the findings of altered work tickets, missing gate records, contradictory statements and attempted falsification constituted valid grounds not denied by the claimant. The termination was held both procedurally and substantively fair. Reinstatement being available only for unfair termination and only within three years, the entire claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the procedure for the disciplinary hearing and termination was fair

Holding

The procedure complied with Section 41 of the Employment Act and the CBA; the Branch Secretary sent apologies and union officials sat on the committee

Reasoning

The minutes showed the Branch Secretary of KUDHEIHA Kakamega Branch sent apologies to the hearing, and union officials (shop steward, Secretary and Chairman) were members of the disciplinary committee that unanimously decided to terminate. The claimant did not deny that a disciplinary hearing was held in compliance with the CBA procedure, so the hearing satisfied both the statute and the CBA.

p. 5
02

Whether there were valid grounds for termination

Holding

The disciplinary committee's findings of falsified work tickets, contradictory statements and unreported accidents were valid grounds, not denied by the claimant

Reasoning

The committee found altered work ticket entries, absence of gate records for vehicle KAT 129X between 28th and 31st July 2009, contradictions in the verbal statements of the grievant and Mr. Amakalu, and a deliberate attempt to falsify documents. The claimant did not deny these grounds, and the union officials on the committee were party to the unanimous decision, so they cannot complain.

p. 5
03

Whether the grievant was entitled to reinstatement

Holding

Reinstatement unavailable because the termination was fair and the three-year window had lapsed

Reasoning

Reinstatement is a remedy available only to an employee whose termination was found unfair, and only within three years of termination. Having found the termination procedurally and substantively fair, the court held the grievant could not avail himself of the remedy; the entire claim therefore failed.

p. 5

Legal principles established

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  • For termination to be fair, the reason must be valid and the procedure fair, per Section 45(2) of the Employment Act
  • A claimant cannot challenge the fairness of a hearing by relying on the absence of a union official who sent apologies and where union officials participated in the decision

Court orders

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  1. 1.The whole claim fails and the claim is dismissed
  2. 2.Each party will bear its own costs

Authorities

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Legislation

  • Labour Relations ActSection 62
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
Jurisdiction invoked
First-instance claim reported to the Minister for Labour under Section 62 of the Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kudhehia Workers v Masinde Muliro University of Science and Technology [2018] KEELRC 1521 (KLR)", Case Analysis (2018). Cause No 850 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1521/eng@2018-07-18

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