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ELRCPartially AllowedNot stated in judgment (Employment and Labour Relations Court Cause)· [2019] KEELRC 1433 (KLR)

Eddie Magiri v Kenya Meat Commission [2019] KEELRC 1433 (KLR)

Employment and Labour Relations Court
9 April 2019
1,369 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Meat Commission couldn't prove why it fired its ICT administrator, so the court ordered over Kshs 1.1 million plus costs.

What this practically means

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Executive summary

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Eddie Magiri, employed by Kenya Meat Commission on successive fixed-term contracts from 2007 and as ICT Administrator from 2012, was interdicted in July 2015 for alleged unauthorised deletion of invoices from QuickBooks and summarily dismissed by letter of 25 September 2015, delivered on 11 January 2016. He appealed; the appeal was not processed. He sued alleging unlawful interdiction and dismissal. The Respondent filed a memorandum of appearance but, despite two grants of leave to file a Response out of time, never did; a third attempt was declined, though it was allowed to cross-examine the Claimant. On procedural fairness, the Court found that a Forensic Audit Report was sprung on the Claimant at the oral hearing; despite his written request for a copy and a chance to make further clarifications, the Respondent did not respond, contrary to Clause 14.5.2.2(ii) of its HR Policy Manual, and the appeal under Clause 14.6 was never processed. The process failed both contractual and statutory procedural fairness tests. On substantive fairness, sections 43 and 45 of the Employment Act placed the burden on the employer; without a Response the Respondent could not lead evidence, and the Claimant's unrebutted testimony that he had read-only access and that Finance/Accounts controlled the system meant there were no valid and fair reasons. The Court declared the dismissal unfair, awarded 8 months' gross salary as compensation (Kshs 688,000/-) for about 8 years of service, salary arrears for 5 full months (Kshs 430,000/-), refused reinstatement for want of evidence on its practicalities, and found the Kshs 228,570/- surcharge unlawful. Awards are in addition to terminal benefits under the Discharge Certificate without deduction of the surcharge. Claimant to have costs. Judgment delivered in Nairobi on 9 April 2019 by Radido Stephen, Judge.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The process was unfair: new evidence (Forensic Audit Report) was introduced at the hearing without supplying a copy or allowing further representations, and the appeal was not processed

Reasoning

The HR Policy required giving an employee maximum opportunity to defend himself orally and in writing. The Claimant requested the Forensic Audit Report and a chance to clarify, but the Respondent did not respond. Clause 14.6 provided for appeals to the Board within 6 weeks, yet the Claimant's appeal was not processed. The process failed both contractual and statutory procedural fairness tests.

p. 2
02

Substantive fairness of the dismissal

Holding

The Respondent failed to prove that the Claimant deleted invoices or that the reasons were valid and fair

Reasoning

Under sections 43 and 45 of the Employment Act the employer bears the burden of proving the reason for dismissal and its validity and fairness. Having filed no Response, the Respondent could not lead witness evidence. The Claimant's testimony that he had read-only access and that Finance/Accounts controlled the system was unrebutted.

p. 2
03

Salary arrears

Holding

Awarded for 5 full months only (Kshs 430,000/-), 11 days excluded for lack of an agreed computation formula

Reasoning

The Claimant was out for 6 months and 11 days but was paid half salary for 2 months. While 5 full months is straightforward to compute, the parties did not address the Court on the formula for the 11 days at the monthly salary of Kshs 86,000/-.

p. 3
04

Lawfulness of the surcharge

Holding

The surcharge of Kshs 228,570/- was unlawful as the Respondent led no evidence explaining it

Reasoning

The Claimant testified that the Respondent surcharged him Kshs 228,570/-. The Respondent, having filed no Response and led no evidence, did not show what the surcharge was in respect of, so the Court found it unlawful.

p. 3
05

Compensation

Holding

Equivalent of 8 months' gross salary (Kshs 688,000/-) awarded considering about 8 years of service

Reasoning

In considering the appropriate compensation, the Court took into account the length of service of about 8 years and the gross monthly salary of Kshs 86,000/-, arriving at the equivalent of 8 months' gross salary.

p. 3

Legal principles established

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  • Where an employer fails to discharge the statutory burden under sections 43 and 45 of the Employment Act of proving valid and fair reasons for dismissal, the inference is that no valid and fair reasons existed
  • Introducing new evidence at a disciplinary hearing without furnishing the employee a copy or opportunity to respond, and failing to process an appeal, breaches contractual and statutory procedural fairness

Court orders

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  1. 1.Declaration that the dismissal of the Claimant was unfair
  2. 2.Compensation of the equivalent of 8 months' gross salary, Kshs 688,000/-
  3. 3.Salary arrears of Kshs 430,000/- (limited to 5 full months)
  4. 4.The awards to be in addition to terminal benefits in the terminal benefits schedule attached to the Discharge Certificate without deduction of the surcharge
  5. 5.Claimant to have costs

Authorities

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Legislation

  • Employment Actsections 43 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 43 and 45 applied)

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, "Eddie Magiri v Kenya Meat Commission [2019] KEELRC 1433 (KLR)", Case Analysis (2019). Not stated in judgment (Employment and Labour Relations Court Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1433/eng@2019-04-09

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