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ELRCPartially AllowedCause No 33 of 2017· [2018] KEELRC 2531 (KLR)

Boaz Isiche Mutekwa v Ampath (Moi Teaching & Referral Hospital) [2018] KEELRC 2531 (KLR)

Employment and Labour Relations Court
24 January 2018
RSRadido Stephen
1,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a driver's dismissal as fair but ordered his employer to pay unpaid wages and pro rata leave, and issue a certificate of service.

What this practically means

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Executive summary

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The Claimant, a driver employed by the Respondent on successive one-year contracts since 2006, was summarily dismissed on 31 October 2016 after a radiator of vehicle KBT 141 M was replaced at West Field Motors, Kitale, without following the Transport Fleet Management Policies requiring a Service Request Form and advance authorisation. He was suspended by show cause notice dated 15 August 2016, responded in writing, and a Disciplinary Committee recommended summary dismissal. The Claimant alleged the dismissal was substantively and procedurally unfair, particularly because he was allegedly absent from the disciplinary hearing of 30 September 2016. The court framed five issues as adopted from the pleadings. On procedure, it held that section 41 of the Employment Act permits the process by correspondence, face-to-face hearing, or both; the Claimant made written representations and showed no bias or injustice, so the Respondent substantially complied with statutory procedural fairness. On substance, sections 43 and 45 place the burden on the employer; the court found the flouting of the Service Request Form procedure proved, no Service Request Form having been produced and that testimony uncontroverted, and held the reasons valid and fair. Compensation, notice pay, gratuity and overtime were refused; the court awarded unpaid wages of Kshs 66,414/- and pro rata leave of Kshs 19,370/75, total Kshs 85,784/75, ordered a certificate of service within 14 days, costs on half scale, and directed transmission of the file back to Eldoret. Judgment delivered in Nairobi on 24 January 2018 by Radido Stephen, Judge.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The Respondent substantially complied with section 41 procedural fairness requirements

Reasoning

The Claimant received a show cause notice and responded in writing within the time given. Though the minutes of the 30 September 2016 hearing did not record his attendance, he did not show bias, injustice, or a contractual entitlement to a face-to-face hearing. Written representations suffice under section 41.

p. 3
02

Substantive fairness of the summary dismissal

Holding

The Respondent proved valid and fair reasons: the Claimant flouted the Transport Fleet Management Policies

Reasoning

The Transport Fleet Management Policies required a Service Request Form with advance authorisation before repairs. No Service Request Form was completed, and that testimony was not controverted. The Claimant offered no explanation for failing to obtain approval despite it being available.

p. 3
03

Remedies for earned wages and pro rata leave

Holding

Claimant entitled to unpaid wages for September and October 2016 and pro rata leave for 2016

Reasoning

Wages earned up to dismissal are payable as of right absent lawful basis for unpaid suspension. The Respondent admitted leave for 2016 was not taken and the Claimant's computations were not controverted.

p. 4

Legal principles established

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  • The procedural fairness process under section 41 of the Employment Act may be conducted through correspondence, a face-to-face hearing, or a combination of both
  • Employers bear the burden of proving reasons for dismissal and that the reasons are valid and fair
  • A certificate of service is a statutory right of an employee
  • Earned wages up to the date of dismissal are payable as of right where no contractual or legal authority for suspension is demonstrated

Court orders

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  1. 1.Dismissal of heads of relief dependent on the finding that the summary dismissal was fair
  2. 2.Award to the Claimant of unpaid wages of Kshs 66,414/-
  3. 3.Award to the Claimant of pro rata leave of Kshs 19,370/75, total award Kshs 85,784/75
  4. 4.Respondent to issue a certificate of service to the Claimant within 14 days
  5. 5.Claimant to have costs on half scale
  6. 6.File to be transmitted back to Eldoret after delivery of judgment

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007sections 43 and 45
  • Employment Act, 2007section 49(1)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under 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, "Boaz Isiche Mutekwa v Ampath (Moi Teaching & Referral Hospital) [2018] KEELRC 2531 (KLR)", Case Analysis (2018). Cause No 33 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2531/eng@2018-01-24

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