Joseph Gitile Naituli v Egerton University & another [2019] KEELRC 1461 (KLR)
The bottom line
#A Kenyan professor who waited two years before resigning over a hostile workplace lost his constructive dismissal claim, though he recovered unpaid leave and salary benefits.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of suspension without salary
Suspension was lawful as it had a contractual anchor in clause 15 of the Terms of Service
Clause 15 of the Terms of Service for Senior Academic, Library and Administrative Staff authorised the Vice-Chancellor to suspend a member of staff on no salary pending investigations which could lead to removal for good cause. Since there was contractual agreement permitting such suspension pending disciplinary action, the suspension of 25 October 2006 could not be faulted.
Competence of the Special Human Resources Committee of Council
The variation in nomenclature of the committee did not vitiate the disciplinary proceedings
The Terms of Service did not enumerate the members of the Senior Staff Disciplinary Committee of Council. The Claimant did not demonstrate that the members of the committee that heard him were not members of Council. Given the committee's name, 'Special Human Resources Committee of Council', the mere difference in nomenclature could not invalidate the proceedings.
Constructive dismissal
Not a case of constructive dismissal; the Claimant waited about two years before treating himself as discharged
Applying the contract test in Western Excavating ECC Ltd v Sharp, the alleged hostile conduct began in 2004/2005, yet the Claimant only treated himself as discharged on 28 November 2006 when he disagreed with the final warning terms. An employee must make up his mind soon after the conduct; delay amounts to affirmation of the contract. Transfer authority was also contractual.
Lawfulness of dismissal of 26 June 2007
Dismissal was lawful; the Claimant's own conduct evinced an intention not to fulfil his contractual obligations
The Employment Act, 2007 (commenced 2 June 2008) did not apply; the applicable framework was the contract, common law and the repealed Employment Act, cap 226. The second disciplinary process concerned distinct allegations (absence from duty from 4 December 2006), was not sub judice after the injunction was discharged, and the Claimant admitted never resuming duty.
Alleged inconsistency between the minutes and the final warning letter
No material departure existed between the corrected minutes of 28 November 2006 and the final warning letter
The discrepancies in the raw minutes of 27 November 2006 were rectified at the confirmation of minutes on 28 November 2006, which showed the Claimant was found guilty with a sanction of final warning. The letter of 28 November 2006 therefore accorded with the corrected minutes.
Entitlements under the contract
Leave (Kshs 895,818/-), leave travelling allowance (Kshs 6,192/-) and unpaid SSP pay (Kshs 270,000/-) allowed; lost computer claim declined
Leave is a statutory entitlement and the Respondents produced no leave records to rebut the claim. The Terms of Service provided for leave travelling allowance, unrebutted. The SSP courses claim was unrebutted by production of appropriate records. The lost computer claim failed for want of proof of value.
Legal principles established
#- Constructive dismissal is governed by the contract test: the employer's conduct must be a significant breach going to the root of the contract, and the employee must elect to treat the contract as discharged soon after the conduct
- The classic doctrine of natural justice (rule against bias/judge in own cause) does not apply in the ordinary employment sphere where the employer has internal disciplinary procedures, which must however be scrupulously adhered to
- No suit ought to be defeated because of misjoinder
- A variation in the nomenclature of a disciplinary committee does not vitiate disciplinary proceedings absent demonstration that its members were not properly constituted
Court orders
#- 1.The 1st Respondent to pay the Claimant Kshs 895,818/- on account of leave
- 2.The 1st Respondent to pay the Claimant Kshs 6,192/- on account of leave travelling allowance
- 3.The 1st Respondent to pay the Claimant Kshs 270,000/- on account of unpaid SSP pay
- 4.The 1st Respondent to issue a Certificate of Service to the Claimant within 15 days
- 5.Claimant to have costs based on the awarded amount
- Jurisdiction invoked
- Jurisdictional concerns prompted transfer from the High Court to the Employment and Labour Relations Court on 26 January 2016 on the Claimant's application; no specific constitutional/statistical provision quoted in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Gitile Naituli v Egerton University & another [2019] KEELRC 1461 (KLR)", Case Analysis (2019). Cause (transferred from High Court, Nakuru; original suit instituted 11 January 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1461/eng@2019-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.