Jackson Awuor & 8 others v Registered Trustees of the Sisters of Mercy (Kenya) t/a “The Mater Misericordia Hospital” [2019] KEELRC 430 (KLR)
The bottom line
#A Kenyan court awarded nine Mater Hospital executives 12 months' salary each because they were fired without valid reasons or a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had valid reasons to dismiss the Claimants
No - the Respondent failed to prove valid reasons; the allegations were generalized, details were never supplied, and neither the forensic audit report nor evidence of loss was produced in court.
Section 43(1) of the Employment Act requires an employer to prove the reasons for termination, failing which the termination is unfair under Section 45. The show cause letters were vague, the Claimants' requests for particulars and for the forensic audit report were refused, and the Respondent's witnesses, including the forensic auditor, admitted they had no evidence of the alleged loss. The audited accounts even showed profits. The Respondent therefore failed to discharge the statutory burden.
Whether the Claimants were taken through a fair disciplinary process
No - the process was procedurally unfair; no disciplinary hearing was held and the decision to dismiss was made in the Claimants' absence.
Section 41 of the Employment Act obliges an employer to explain reasons to the employee and to hear and consider representations before termination. RW1 admitted no disciplinary hearing was conducted, no warnings issued, the audit report was never supplied, and the dismissal decision was taken at a meeting on 7 February 2015 without the Claimants. This also breached the Respondent's own Employee Handbook's progressive corrective action procedure. The Claimants' terminations were therefore procedurally unfair.
Whether the Respondent's counter-claim for restitution of half salary, pension and NSSF contributions was proved
The counter-claim was not proved; the payments were made pursuant to a court order, but salaries earned in alternative employment must be refunded.
The Respondent's witnesses produced no evidence substantiating the alleged losses or misconduct. RW1 admitted she had no documents supporting the accusations, and RW3, the forensic auditor, had neither the report nor evidence of the claimed loss in court. The half-salary payments were made pursuant to an interim court order, so restitution was not justified; however, equity required Claimants who concurrently earned salaries elsewhere to refund those earnings.
What remedies are the Claimants entitled to
Each Claimant was awarded the maximum 12 months' salary compensation under Section 49, notice pay per contract, and pension entitlement, with deductions for salary earned in alternative employment.
Having found the terminations both substantively and procedurally unfair and effected in an inhuman manner (escorted out by security guards), the court exercised its discretion under Section 49 to award the maximum 12 months' gross salary compensation. Notice pay and pension entitlements followed contractually. Where Claimants secured alternative employment yet continued receiving half salary under the interim order, the net amounts earned were deducted to avoid unjust enrichment.
Legal principles established
#- An employer bears the burden of proving valid reasons for termination; failure to do so renders the termination unfair under Sections 43 and 45 of the Employment Act.
- An oral disciplinary hearing is mandatory before termination on grounds of misconduct, and an employee must be given the opportunity to defend himself before employment is terminated.
- Dismissal without valid reasons and without due process is unfair termination.
- An employee who received half salary under an interim court order while also earning salary from alternative employment must refund the salary so earned.
Court orders
#- 1.Declaration that the termination of the Claimants was unfair
- 2.Refund to the Respondent of salary earned by any Claimant while also earning half salary after finding alternative employment
- 3.Award to each Claimant of maximum compensation equivalent to 12 months' salary for unfair termination, with deductions for salaries earned in alternative employment
- 4.Award of notice pay (1-3 months' salary as per contract) to each Claimant
- 5.Award of each Claimant's pension entitlement, payable from the pension scheme
- 6.Dismissal of the Respondent's counter-claims
- 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (original employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Awuor & 8 others v Registered Trustees of the Sisters of Mercy (Kenya) t/a “The Mater Misericordia Hospital” [2019] KEELRC 430 (KLR)", Case Analysis (2019). Cause 153 of 2015 (consolidated with Cause 212 of 2015 and Cause 214 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/430/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.