Charles Abiero & another v One Acre Fund [2018] KEELRC 1906 (KLR)
The bottom line
#Kenya's Employment Court ruled two auditors were unlawfully sacked and awarded them over Kshs. 1.1 million combined, plus costs.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal
The dismissal was not for a valid reason; the Respondent failed to facilitate the Claimants to travel to the out-of-station assignment while all other colleagues were facilitated
The Claimants testified under oath that the standing practice was payment of a specific allowance for out-of-station duty. Judith Opiyo, the Senior Expense Audit Manager responsible for the Yala audit, corroborated that employees assigned to that audit were supposed to be facilitated to travel, that this was standard practice, and that all employees except the two Claimants were paid for the assignment. This was the first time such an omission occurred and amounted to discrimination.
Fairness of the dismissal procedure
The procedure was unfair: no show cause letter was issued and the Claimants were not heard before a disciplinary committee, violating sections 41, 43 and 45 of the Employment Act
Summary dismissal under section 44(1) of the Employment Act does not dispense with the procedural requirements of the Act. The Claimants were denied notice and a hearing. The court found the dismissal both substantively and procedurally unfair, entitling them to compensation under section 49(1)(c) as read with section 49(4).
Quantum of compensation and terminal benefits
Each Claimant awarded the equivalent of ten months' salary as compensation plus notice pay and service gratuity calculated on gross salary
The court considered the Claimants' short service periods (one year four months and two years five months), their professional status in the finance sector with career prospects cut short by unlawful and discriminatory conduct, their non-contribution to the dismissal, and the aggravating factor of unpaid terminal benefits. Gratuity was computed on gross salary since the contract did not provide otherwise.
Legal principles established
#- An employer who fails to facilitate an employee to travel to an out-of-station assignment has no valid reason to summarily dismiss the employee for failing to attend; and summary dismissal without a show cause letter or disciplinary hearing violates sections 41, 43 and 45 of the Employment Act
- A summary dismissal must follow both substantive validity of reason and fair procedure, including a show cause letter and appearance before a disciplinary committee
- Withholding a Certificate of Service pending payment of alleged employee loans is not a lawful basis for withholding it
Court orders
#- 1.Charles Abiero: one month salary in lieu of notice of Kshs. 45,193.05
- 2.Charles Abiero: service gratuity of Kshs. 36,315
- 3.Charles Abiero: compensation of Kshs. 451,930 (total award Kshs. 533,438.05)
- 4.Geoffrey Odhiambo: notice pay of Kshs. 49,853.41
- 5.Geoffrey Odhiambo: service gratuity of Kshs. 79,007
- 6.Geoffrey Odhiambo: compensation of Kshs. 498,534 (total award Kshs. 627,394.41)
- 7.Respondent to pay costs of the case
- 8.Respondent to provide Certificates of Service forthwith
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (sections 41, 43, 44, 45, 49 of the Employment Act applied)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kananga M’nchebere & another v East African Portland Cement Company Limited [2019] KEELRC 2247 (KLR)[2019] KEELRC 2247 (KLR)15 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Charles Abiero & another v One Acre Fund [2018] KEELRC 1906 (KLR)", Case Analysis (2018). Cause No. 179 of 2016 (consolidated with Cause No. 180 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1906/eng@2018-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.