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ELRCPartially AllowedCause No 256 of 2016· [2018] KEELRC 2479 (KLR)

William Okech Aloo v Board of Management Butula Boys’ High School [2018] KEELRC 2479 (KLR)

Employment and Labour Relations Court
1 February 2018
MOMaureen OnyangoMNMathews Nderi Nduma
2,420 words in judgment
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The bottom line

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What this practically means

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Executive summary

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William Okech Aloo, an Accounts Clerk employed by the Board of Management of Butula Boys High School from 1st January 2003, sued for unfair termination following his dismissal on 23rd July 2016. He had been suspended in May 2015 and interdicted in July 2015 over allegations of mishandling school finances, including unrecorded manual receipts, collusion with students over fee arrears, exaggeration of creditors' claims and alteration of a tender price. The Respondent filed appearance but neither filed a defence nor attended the hearing. The court found the dismissal procedurally unfair: the letter inviting the Claimant to the Board hearing did not specify the charges; he was not given the opportunity to be represented or accompanied by a fellow employee or union official; he could not substantively respond without supporting documents; he remained on suspension and interdiction for over a year; and the suspension and interdiction were not provided for in the Employment Act or shown to be in his terms of service. Reinstatement was refused for want of exceptional circumstances and likely strained relations. The court ordered refund of all salary withheld during suspension and interdiction to the date of dismissal, one month's salary in lieu of notice (Kshs. 39,996) and maximum compensation of 12 months' salary (Kshs. 479,952) given his over 14 years of service. Claims for 14 years' unpaid leave, salary for remaining years and unremitted NSSF deductions for 2003-2004 failed for want of proof, and in the latter case, limitation. The Respondent was ordered to pay costs, with interest on the decretal sum at court rates from the date of judgment.

Key legal issues

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01

Whether the dismissal was procedurally fair under section 41 of the Employment Act

Holding

The dismissal was unfair: the hearing letter did not specify charges, the Claimant was not allowed representation or accompaniment, and he could not substantively respond without supporting documents

Reasoning

The letter inviting the Claimant to the Board hearing did not specify the charges; he was not offered representation by a fellow employee or union official as section 41 requires; he was denied the supporting documents needed to answer charges spanning 2013-2014; and he remained suspended/interdicted for over a year with no explanation, suggesting a witch-hunt. The hearing was therefore not conducted in the manner prescribed by section 41.

p. 5
02

Whether reinstatement should be granted

Holding

Reinstatement refused; no exceptional circumstances proved and strained relations were likely

Reasoning

Section 49(4) permits reinstatement only in exceptional circumstances, none of which the Claimant proved. The court also considered that relations between the Claimant and the principal would be very strained and uncomfortable for both if he returned to work under the same principal.

p. 5
03

What compensation is due for unfair termination

Holding

Maximum compensation of 12 months' salary (Kshs. 479,952) awarded given over 14 years of service

Reasoning

Having found the dismissal unfair, the court took into account the length of service exceeding 14 years and awarded the maximum 12 months' gross salary under section 49, computed on the last known gross salary of Kshs. 39,996.

p. 6

Legal principles established

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  • For a termination to be fair, an employer must comply with both section 41 and section 43 of the Employment Act, relating to fair procedure and valid reason
  • Reinstatement is available only in exceptional circumstances under section 49(4) of the Employment Act
  • Employment contracts are not intended to unfairly enrich employees and courts will not order anticipatory payments of salary for future years of service
  • Suspension and interdiction are not provided for in the Employment Act and are lawful only if provided for in the employee's terms and conditions of employment

Court orders

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  1. 1.All salary withheld during suspension and interdiction to the date of dismissal to be refunded to the Claimant
  2. 2.One month's salary in lieu of notice in the sum of Kshs. 39,996
  3. 3.Maximum compensation of 12 months' salary for unfair termination in the sum of Kshs. 479,952
  4. 4.Respondent to pay the Claimant's costs of the suit
  5. 5.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 49(4)

Cases cited (2)

  • Engineer Francis N. Gachuri v Energy Regulatory Commission
  • Elizabeth Wakanyi Kibe
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination of employment under the Employment Act (sections 41, 43, 45, 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, "William Okech Aloo v Board of Management Butula Boys’ High School [2018] KEELRC 2479 (KLR)", Case Analysis (2018). Cause No 256 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2479/eng@2018-02-01

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