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ELRCAllowedCause No 647 of 2014· [2019] KEELRC 1670 (KLR)

Alfred Ochieng Ogola v Booth Extrusions Limited [2019] KEELRC 1670 (KLR)

Employment and Labour Relations Court
17 May 2019
BOByram Ongaya
1,456 words in judgment
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The bottom line

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A Kenyan court awarded an employee 12 months' salary after his employer fired him without a proper hearing and punished him twice for the same mistake.

What this practically means

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Executive summary

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The claimant, employed by the respondent since 1983 and risen to Supervisor (Operations), was issued a memorandum dated 03.10.2012 requiring him to explain how a check valve in a hydraulic system came to be deliberately reversed, causing production loss. He replied in writing explaining that the machine had broken down, that he promptly reported it to his head of department, Ramana, and summoned mechanics. He was severely warned and suspended without pay for two weeks by letter dated 06.10.2012, and thereafter his employment was terminated effective 30.11.2012 on account of loss of trust and confidence. He sued for a declaration that the termination was wrongful and unfair and for 12 months' salary as compensation under section 49 of the Employment Act, 2007. The court found that although a show-cause notice was issued and answered, the claimant was never accorded a hearing as required by section 41, rendering the termination procedurally unfair. On substance, the evidence established that the claimant performed his duties by promptly reporting the breakdown, and being a supervisor without engineering knowledge, could not be held responsible for the reversed valve; the respondent thus failed to prove a valid reason under sections 43 and 45. The court also found the claimant was subjected to double jeopardy, having been punished by warning and suspension for the same alleged misconduct before termination. Judgment was entered for the claimant with a declaration of unfair termination, compensation of Kshs. 605,628.00 less PAYE, and costs.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

The termination was procedurally unfair because despite a show-cause notice and written reply, the claimant was never accorded a hearing.

Reasoning

Section 41 requires that an employee be accorded a hearing before termination on grounds of misconduct. The court found the show-cause letter and written reply insufficient; at no point was the claimant heard as the statute contemplates. Procedural fairness therefore failed, rendering the termination unfair in procedure.

p. 2
02

Validity of the reason for termination under sections 43 and 45

Holding

The respondent failed to establish a valid or genuine reason; the claimant performed his duties by promptly reporting the breakdown, and as a supervisor without engineering knowledge he could not be blamed for the reversed valve.

Reasoning

The evidence showed the claimant immediately reported the machine breakdown to his head of department and summoned mechanics. He supervised operators only and had no technical engineering knowledge, so operators and he lacked capacity to deliberately reverse the valve. The respondent thus failed to prove misconduct or operational requirements justifying termination.

p. 2
03

Quantum of compensation under section 49

Holding

Maximum compensation of 12 months' pay (Kshs. 605,628.00) was awarded given the claimant's clean 29-year record, non-contribution to termination, and the double jeopardy inflicted on him.

Reasoning

The court considered section 49 factors: over 29 years of diligent, loyal service evidenced by meritorious promotions; no contribution by the claimant to the termination; and the aggravating circumstance that after a severe warning and two weeks' unpaid suspension for the same alleged misconduct, the respondent nonetheless terminated him - gross unfairness warranting the maximum award.

p. 2

Legal principles established

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  • A show-cause notice and written reply do not satisfy the hearing requirement of section 41 of the Employment Act; a separate oral hearing must be accorded.
  • Imposing a severe warning and suspension for alleged misconduct and thereafter terminating employment for the same misconduct amounts to double jeopardy and gross unfairness.
  • The burden rests on the employer to prove a valid and genuine reason for termination.

Court orders

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  1. 1.Declaration that the termination of the contract of service by the respondent was unjustified and unfair
  2. 2.The respondent to pay the claimant Kshs. 605,628.00 (less PAYE) by 01.07.2019, failing which interest at court rates from the date of judgment till full payment
  3. 3.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49
Jurisdiction invoked
Employment Act, 2007 (sections 41, 43, 45 and 49) - first-instance employment claim

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, "Alfred Ochieng Ogola v Booth Extrusions Limited [2019] KEELRC 1670 (KLR)", Case Analysis (2019). Cause No 647 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1670/eng@2019-05-17

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