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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 1633 (KLR)

Fatuma Abdirahman v Oxfarm Novib [2018] KEELRC 1633 (KLR)

Employment and Labour Relations Court
6 July 2018
1,352 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 awarded an NGO employee 12 months' salary because her employer denied her a counsellor during disciplinary proceedings and failed to prove valid dismissal reasons.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 15.04.2009 as a Programme Officer, Community Therapeutic Care, and later placed on an indefinite contract in recognition of her good performance, was sent on successive compulsory leave, asked to show cause by letter dated 03.02.2016, subjected to a disciplinary hearing on 11.02.2016, and dismissed by letter dated 03.03.2016; her appeal was unsuccessful. She sued for a declaration of unfair termination and compensation of 12 months' salary under section 49 of the Employment Act, 2007. The court framed four issues: procedural fairness, validity of reasons, unfairness, and remedies. On procedure, it found that although notice and a hearing were given under section 41, the respondent breached Article 3.7(4) of its National Staff Terms and Conditions by denying the claimant the assistance of a counsellor during the compulsory leave stage that formed the foundation of the disciplinary proceedings; this omission occasioned manifest injustice and rendered the termination procedurally unfair. On validity of reasons, the court found the respondent had not discharged its evidential burden under sections 43(1) and 45(2)(a) and (b): the disciplinary record showed no deficiency in the claimant's explanations, and the respondent's witness conceded, among other things, a clean service record, absence of key documents, and that some allegations fell outside the claimant's duties. The court awarded 12 months' salary of Kshs.3,779,376.00, payable by 01.09.2018 failing interest at court rates from the date of judgment, plus costs of the suit.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

Notice and a disciplinary hearing were accorded per section 41, but the denial of the claimant's entitlement to be heard with the assistance of a counsellor under Article 3.7(4) of the respondent's National Staff Terms and Conditions occasioned manifest injustice, rendering the termination procedurally unfair.

Reasoning

The court accepted the claimant's evidence that under Article 3.7(4) she was entitled to be heard with a counsellor's assistance. The compulsory leave formed the foundational basis of proceedings intended to lead to immediate dismissal under Article 3.7(1), so the omission was neither excusable nor minor. Since the disciplinary procedure was therefore not properly commenced, the termination was unfair for want of due procedure at its inception.

p. 1
02

Validity of the reasons for termination

Holding

The respondent failed to prove valid reasons for the dismissal as at the time of dismissal.

Reasoning

The disciplinary record contained no finding that the claimant's explanations were deficient, and the respondent's witness conceded the claimant had a clean record, that key reports were not before the disciplinary panel, that some allegations fell outside her duties, and that there was no documentary evidence on the fund-uploading allegation. The court held the respondent failed to discharge its evidential burden under sections 43(1) and 45(2)(a) and (b) of the Employment Act.

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03

Remedies - compensation under section 49

Holding

The claimant was awarded the 12 months' salary she prayed for, being Kshs.3,779,376.00.

Reasoning

The court considered the claimant's clean record, her over five years of dedicated service, the indefinite contract earned through good performance, the heavy responsibilities shouldered in volatile Somalia, the unexplained targeting of her in a team setting, and her difficulty securing alternative employment. It concluded that 12 months' pay under section 49 would meet the ends of justice.

p. 2

Legal principles established

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  • An employer bears the evidential burden to prove a valid reason for termination existing at the time of dismissal under sections 43(1) and 45(2)(a) and (b) of the Employment Act, 2007
  • Where an employer's internal procedures entitle an employee to be heard with the assistance of a counsellor, breach of that entitlement may render the disciplinary process and the resulting termination procedurally unfair

Court orders

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  1. 1.The declaration that the respondent unfairly and wrongfully terminated the claimant's employment
  2. 2.The respondent to pay compensation in accordance with section 49 of the Employment Act, 2007 in the sum of Kshs.3,779,376.00 by 01.09.2018 failing interest to run thereon at court rates from the date of judgment till full payment
  3. 3.The respondent to pay claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 45(2)(a) and (b)
  • Employment Act, 2007section 49
  • Food, Drugs and Chemical Substances (General) Regulations, 1978Regulation 10
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and compensation under section 49)

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, "Fatuma Abdirahman v Oxfarm Novib [2018] KEELRC 1633 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1633/eng@2018-07-06

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