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ELRCDismissedCause No 193 of 2014· [2019] KEELRC 57 (KLR)

Pamela Odera v African Medical and Research Foundation [2019] KEELRC 57 (KLR)

Employment and Labour Relations Court
22 November 2019
ANAbuodha Jorum Nelson
4,894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld AMREF's dismissal of a finance manager for breaching company financial policies, confirming employees must prove unfair termination claims.

What this practically means

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Executive summary

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The Claimant, formerly the Respondent's Corporate Finance Manager, sued alleging that her suspension on 4th October 2013 and subsequent termination on 3rd December 2013 were unfair, premised on financial irregularities she denied, and that the process was predetermined, humiliating and procedurally flawed, including a conflict of interest in the forensic audit by PWC and a disciplinary panel chaired by the Director-General to whom any appeal would lie. The Respondent maintained that investigations revealed serious irregularities: approval of inconsistent travel and relocation claims for Jenny Panow, concealment of net pay through a direct standing order for her personal mortgage outside payroll, unapproved salary advances, and interchangeable use of official and personal credit cards. The court found the internal audit witness credible and noted the Claimant did not deny the core conduct, producing no authority legitimising it. Applying Section 45 of the Employment Act and the reasonable-employer test, the court held there were valid and justifiable reasons for termination and that a fair procedure was followed. It noted policy manuals form part of the employment contract and their violation justifies termination. As the Claimant had been fully paid terminal dues and did not seek reinstatement, the court dismissed the claim and, acknowledging the courtesy between the parties, ordered each party to bear their own costs.

Key legal issues

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01

Validity of reasons for termination

Holding

There existed valid and justifiable reasons for terminating the Claimant's services.

Reasoning

The Claimant approved irregular travel and relocation claims for Jenny Panow, obtained unapproved advances, made a direct debit for her personal mortgage outside payroll contrary to policy, and interchangeably used official and personal credit cards. She produced no authority legitimising these actions. A reasonable employer would regard termination as the proportionate response to such breaches of fiduciary duty and internal financial controls.

p. 6
02

Procedural fairness of suspension and termination

Holding

The respondent followed a fair procedure under Section 45 of the Employment Act.

Reasoning

The Claimant was suspended to facilitate investigations, interviewed by PWC, issued a show cause letter to which she responded, and accorded a disciplinary hearing before termination. Though she complained of inadequate disclosure and conflict of interest, the court was satisfied the process accorded with Section 45 and that her representations were considered.

p. 6
03

Burden of proof

Holding

The Claimant bore and failed to discharge the burden of justifying her conduct.

Reasoning

Under Section 47(5) of the Employment Act the employee bears the burden of proving unfair termination. The Claimant contended her actions were authorised or regular but produced no regulation, memorandum or letter of authority to support that contention, and thus failed to justify the actions for which she was terminated.

p. 5

Legal principles established

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  • The court does not analyze and critique the reasons for termination; the test is whether a reasonable employer would consider termination the most proportionate disciplinary action.
  • Policy manuals and regulations form part of the employment contract and their violation is a justifiable reason for termination.
  • Under Section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee.

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.No order for terminal dues as the Claimant was fully paid her terminal dues upon termination
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Labour Relations Act (first-instance employment cause)

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, "Pamela Odera v African Medical and Research Foundation [2019] KEELRC 57 (KLR)", Case Analysis (2019). Cause No 193 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/57/eng@2019-11-22

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