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ELRCDismissedCause No. 15 of 2017· [2018] KEELRC 1971 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) v B.O.M Getarwet Secondary School [2018] KEELRC 1971 (KLR)

Employment & Labour Relations Court of Kenya
18 May 2018
2,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a cook's dismissal for exam-related phone misuse because the school proved staff knew the rules and got a fair hearing.

What this practically means

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Executive summary

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The Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) sued the Board of Management of Getarwet Secondary School on behalf of grievant Geoffrey Tonui, a cook employed in 2003, alleging unfair termination on 10th June 2014 contrary to sections 41, 43 and 45 of the Employment Act, 2007, clause 8 and 6 of a Collective Barg Agreement and Article 41 of the Constitution. The claimant alleged the grievant was interrogated over charging a student's mobile phone battery, suspended without a written suspension letter, given short notice of a disciplinary hearing without stated offences, barred from union representation and ultimately terminated, seeking reinstatement or terminal dues of Kshs.335,027.00 including notice pay, unpaid salary during suspension, service gratuity, underpayment of wages, house and medical allowances and maximum compensation. The respondent denied the claim, disavowed any CBA, and relied on school rule 19 and internal memos forbidding electronic devices, plus minutes showing staff were taken through the code of conduct in January 2014. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Finding overwhelming documentary evidence including board minutes resolving summary dismissal, the court held the termination lawful. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the termination of the grievant Geoffrey Tonui was wrongful, unfair and unlawful

Holding

The termination was lawful, fair and justified; the claim failed

Reasoning

The respondent demonstrated through minutes of 6th January 2014 that the grievant and other non-teaching staff were taken through the school code of conduct, including the prohibition on electronic devices. Rule 19 of the code forbade mobile phones. The grievant was suspended after a disciplinary meeting on 10th April 2014 and the Full Board minutes of 1st December 2014 resolved summary dismissal. Documentary evidence showed the misconduct occasioned disruption through exam cheating. The court therefore found a lawful termination.

p. 5
02

Whether the claimant is entitled to the relief sought

Holding

Not entitled; the claim was dismissed

Reasoning

Having found the termination lawful, the court held the claimant could not obtain reinstatement or terminal dues. The relief was refused solely because the claimant lost its case of unlawful termination of employment.

p. 5
03

Applicability of the Collective Bargaining Agreement between the claimant and the Ministry of Education, Science and Technology

Holding

The court took note that the CBA with the Ministry applies in the circumstances of this case

Reasoning

The respondent denied the existence of a CBA; the claimant responded that the CBA between the union and the Ministry of Education, Science and Technology applied. The court accepted that the CBA applied to the dispute, though this did not save the claim on the facts.

p. 3

Legal principles established

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  • An employer who has taken staff through the school code of conduct and holds a properly constituted disciplinary process culminating in a board decision of summary dismissal, supported by documentary evidence, establishes a lawful termination under sections 41, 43 and 45 of the Employment Act.

Court orders

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  1. 1.Dismissal of the claim
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment Actsections 41, 43 and 45
  • Constitution of KenyaArticle 41

Cases cited (1)

  • Kariti Secondary School vs Kudheiha
    Cause No. 103 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination of employment under sections 41, 43 and 45 of the Employment Act, 2007

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, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) v B.O.M Getarwet Secondary School [2018] KEELRC 1971 (KLR)", Case Analysis (2018). Cause No. 15 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1971/eng@2018-05-18

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