Ronald Wamalwa & another v Masinde Muliro University of Science and Technology [2018] KEELRC 2481 (KLR)
The bottom line
#Kenyan employees who refuse to attend disciplinary hearings cannot later claim unfair dismissal, though they keep salary, leave and a certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal for refusing to attend disciplinary hearings was unfair
Dismissal was fair; valid reason existed as Claimants refused to submit to the disciplinary process despite five invitations
Section 41 of the Employment Act requires an employee be heard before termination. The Claimants were summoned five times and refused to attend, while a co-accused, Lydia Nandemo, attended and was absolved, demonstrating the opportunity existed. Their own appeal letter admitted non-attendance. The employer therefore had valid reason under sections 41, 43 and 47, and the claim of victimisation for union activities was unsupported by evidence.
Whether Claimants were victimised for union activities
Claim failed; no evidence of victimisation beyond mere union office
The County Labour Officer's report found victimisation and unfair labour practices, but the court found that apart from being union officials the Claimants produced no evidence that union activities motivated the dismissal. The stated reason was refusal to submit to the disciplinary process, which the documentary record and minutes corroborated.
Entitlement to remedies
Only accrued salary, allowances, leave due and certificate of service awarded
Having found the termination lawful, the court declined reinstatement, declaration, damages and service pay (Claimants being pensionable and NSSF members). Claimants retained statutory entitlements accrued to the date of dismissal, including certificate of service under section 51 of the Employment Act, payable within 30 days failing which interest would accrue.
Legal principles established
#- An employee who refuses to attend disciplinary hearings cannot later claim denial of a fair hearing; procedural fairness under section 41 is met by an opportunity to be heard
- Procedural fairness under section 41 is fulfilled by a show-cause letter and opportunity to attend an oral hearing; the employee may not decline and then claim lack of hearing
Court orders
#- 1.Claimants awarded salary and allowances up to the date of dismissal and any leave due as at that date
- 2.Respondent directed to issue certificates of service in terms of section 51 of the Employment Act
- 3.Respondent directed to pay salary and leave due within 30 days failing which interest shall accrue from date of judgment
- 4.Claims for declaration of unlawful termination, reinstatement, damages and service pay declined
- Jurisdiction invoked
- Dispute referred to the Employment and Labour Relations Court following conciliation before the County Labour Officer, Kakamega, under the Employment Act and Labour Relations Act framework
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ronald Wamalwa & another v Masinde Muliro University of Science and Technology [2018] KEELRC 2481 (KLR)", Case Analysis (2018). Cause No 94 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2481/eng@2018-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.