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ELRCPartially AllowedMemorandum of Claim dated 21st March 2016, filed 22nd March 2016· [2018] KEELRC 2024 (KLR)

Emmanuel Maitha David v Anglican Development Services & another [2018] KEELRC 2024 (KLR)

Employment and Labour Relations Court
18 May 2018
LNLinnet Ndolo
1,075 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan hospital won on why it fired an employee but lost on how, paying three months' salary for skipping the required fair hearing.

What this practically means

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Executive summary

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The Claimant, employed as a driver by the 1st Respondent on 1st April 2014 on a 36-month contract and deployed to the 2nd Respondent, was dismissed by letter dated 17th November 2015 on allegations that he mobilized staff to attend a political meeting at the workplace during normal working hours. He sued for unpaid salary, three months' salary in lieu of notice, double pay for 16 days, shares and security deductions, compensation for unlawful termination and unpaid overtime. The Respondents defended the dismissal under Sections 44(4)(c) and (e) of the Employment Act, asserting the Claimant was insubordinate and had disrupted the workplace. The Court framed two issues: whether the dismissal was lawful and fair, and whether the Claimant was entitled to remedies. On substance, the Court found a valid reason for termination: even if the Claimant was not the organizer, attending an unsanctioned political meeting at the workplace without the employer's concurrence breached his employment terms. However, on procedure, the Court found the Respondents failed to comply with Section 41, as there was no evidence the Claimant was specifically invited to respond to specific charges, rendering the dismissal procedurally unfair. The Court awarded three months' salary (Kshs. 67,560) as compensation, considering length of service, employment record and the parties' conduct. Claims for notice pay (already paid), unpaid salary, double pay, deductions and overtime were dismissed as unproved. Judgment was entered with interest at court rates and costs to the Claimant.

Key legal issues

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01

Whether there was a valid reason for the dismissal

Holding

The Respondents had a valid reason - the Claimant attended an unsanctioned political meeting at his workplace, breaching his employment terms.

Reasoning

It was undisputed that the Claimant attended a political meeting at his place of work and that the meeting had not been sanctioned by management. Even if he was not the organizer, his attendance without the employer's concurrence breached his employment terms. The Court, guided by Section 43, does not supplant the employer's decision but asks whether the employer acted lawfully and reasonably, and found it did on this limb.

p. 2
02

Whether the termination procedure was fair under Section 41 of the Employment Act

Holding

The dismissal was procedurally unfair because the Claimant was not invited to respond to specific charges.

Reasoning

Although the Respondents convened meetings to discuss the political meeting, there was no evidence that the Claimant was specifically invited to respond to any specific charges regarding his role in it. Section 41 requires that an employee be notified of the charges and heard before dismissal. This failure rendered the dismissal procedurally unfair notwithstanding the existence of a valid reason.

p. 2

Legal principles established

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  • The court does not substitute its own decision for the employer's; it asks whether the employer acted lawfully and reasonably.
  • An employer bears the burden of demonstrating a valid reason for termination under Section 43 of the Employment Act, and must comply with the procedural fairness requirements of Section 41.

Court orders

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  1. 1.Judgment entered in favour of the Claimant and against the 1st and 2nd Respondents in the sum of Kshs. 67,560 being three months' salary in compensation for unfair dismissal
  2. 2.Interest at court rates from the date of judgment until payment in full
  3. 3.Claimant awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 44(4)(c) and (e)

Cases cited (1)

  • Paul Waigiri Muriuki vs Nairobi Water and Sewerage Company Ltd
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (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, "Emmanuel Maitha David v Anglican Development Services & another [2018] KEELRC 2024 (KLR)", Case Analysis (2018). Memorandum of Claim dated 21st March 2016, filed 22nd March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2024/eng@2018-05-18

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