Francis Kariuki Njuguna v National Construction Authority [2019] KEELRC 2023 (KLR)
The bottom line
#A Kenyan court ruled that even when an employee breaks workplace rules, an employer must still follow fair disciplinary procedure before firing them.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination (absence without official leave)
There was a valid reason: the Claimant breached express provisions of the HR Manual by proceeding on leave without approval in the prescribed form
The Respondent's Manual required leave to be applied for in a prescribed form and approved before proceeding. The Claimant admitted he proceeded on leave without approval and that his application was not returned to him. Although the Respondent knew his whereabouts, the Court found the breach of the express policy provisions constituted a valid reason warranting termination under section 45.
Procedural fairness of the termination
The dismissal was unfair and unjustified because the Respondent did not follow its own disciplinary procedure (no investigation, no report) and condemned the Claimant on evidence given in his absence, contrary to the Fair Administrative Action Act and section 45(2) Employment Act
Clause 13.5 of the Manual required investigation and deliberation by a disciplinary committee before escalation. No investigation was done and no report was produced. The Claimant was denied an opportunity to cross-examine or respond to the evidence against him. Accordingly, the employer failed to prove termination in accordance with fair procedure.
Remedies for unfair termination
Claimant awarded 4 months' salary as compensation, one month's salary in lieu of notice, plus terminal dues previously offered (KShs 6,427,435.88), total KShs 8,694,435, with costs and interest
The Court exercised its discretion under section 49 of the Employment Act, tempering compensation because the Claimant himself absented himself on unapproved leave. It credited the terminal dues the Respondent had offered but which the Claimant had not collected for failure to undertake clearance.
Legal principles established
#- Under Section 45(2) of the Employment Act, a termination is unfair if the employer fails to prove a valid and fair reason and that fair procedure was followed
- Summary dismissal for absence without leave under an employer's policy requires proof that efforts were made to trace the absent employee without success
- Failure to follow an employer's own disciplinary procedure, including conducting an investigation, breaches the Fair Administrative Action Act and renders dismissal unfair
Court orders
#- 1.4 months' salary as compensation for unfair termination (4 x KShs 453,400 = KShs 1,813,600)
- 2.One month's salary in lieu of notice (KShs 453,400)
- 3.Payment of terminal dues previously offered by the Respondent totalling KShs 6,427,435.88
- 4.Total award of KShs 8,694,435
- 5.Costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 35, 41, 45, 49) and Article 47 of the Constitution invoked by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kariuki Njuguna v National Construction Authority [2019] KEELRC 2023 (KLR)", Case Analysis (2019). Cause No 2252 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2023/eng@2019-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.