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ELRCPartially AllowedNot stated in judgment (Cause number not indicated on the extracted text)· [2019] KEELRC 2041 (KLR)

Michael Ekai Aremon v Anti-Counterfeit Agency [2019] KEELRC 2041 (KLR)

Employment and Labour Relations Court
4 March 2019
HWHellen Wasilwa
1,371 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court let an employer's disciplinary hearing continue, but only if the employee first sees all evidence, including CCTV footage, against him.

What this practically means

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Executive summary

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The Claimant, interdicted from his position as Manager-Strategy, Planning and Quality Assurance following a physical altercation with a junior colleague in the male washrooms on 21 November 2018, moved the Court by a Notice of Motion dated 15 January 2019 seeking conservatory orders restraining the Respondent from harassing, dismissing, advertising or filling his position, and an order maintaining status quo on the disciplinary action pending the outcome of police investigations at Industrial Area Police Station, where he had reported the assault. He contended that he acted in self-defence, that no preliminary investigation including CCTV footage was conducted, that the employer lacked jurisdiction to discipline him while criminal proceedings were pending, and that the interdiction signalled intent to unlawfully terminate his employment. The Respondent opposed, asserting the Claimant breached its Human Resource Policy and Procedure Manual (clauses on professionalism, respect, harassment and pecuniary embarrassment), that the allegations amounted to gross misconduct, that he was accorded procedural fairness, that the disciplinary process was ongoing and should run its course, and that the application was premature since no culpability decision had been made. The Court, per Wasilwa J, reaffirmed that it does not interfere with an employer's right to discipline staff unless the process is evidently flawed. Finding the Applicant had not demonstrated that the process was flawed, except for the non-reliance on CCTV footage, the Court allowed the disciplinary process to proceed on condition that the Claimant be given access to all evidence against him and all CCTV footage before the hearing progresses. Costs were awarded in the cause. Judgment delivered on 4 March 2019.

Key legal issues

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01

Whether the employer's internal disciplinary process should be stayed pending criminal investigations

Holding

No. The disciplinary process is allowed to continue, but on condition that the Claimant is granted access to all evidence against him, including CCTV footage, before the hearing progresses.

Reasoning

The Court reiterated its established position that it will not interfere with an employer's prerogative to discipline staff unless the process is demonstrably flawed. The Applicant alleged procedural unfairness, particularly non-disclosure of CCTV footage of the washroom altercation, but did not otherwise show the process was flawed. Balancing due process against the employer's disciplinary mandate, the Court permitted the process to continue subject to full disclosure of evidence.

p. 3
02

Whether the interdiction and show-cause process was procedurally flawed

Holding

The Applicant failed to demonstrate any flaw in the process, save for the non-use of CCTV footage which the Court directed be made available.

Reasoning

The Respondent aversed that the Claimant was accorded his procedural rights to a fair hearing and had responded to the show cause letter. The Court observed that the Applicant alleged he was being condemned unprocedurally but did not indicate where the process was flawed. It accepted that CCTV footage would be a positive addition to the investigation and conditioned continuation of the process on its disclosure.

p. 2

Legal principles established

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  • The Court does not interfere with an employer's right to discipline its staff unless it is evident that the disciplinary process is flawed, and even then only to the extent of putting the right process in force
  • An employee facing internal disciplinary proceedings must be accorded access to all evidence against him, including CCTV footage, before the hearing progresses, to avoid condemnation without due process

Court orders

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  1. 1.The disciplinary process is allowed to proceed on condition that the Claimant is given access to all the evidence against him and all the CCTV footage of the incident before the hearing progresses
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1) and (2)(b)
  • Employment ActSections 41, 44, 45(1)
  • Employment and Labour Relations Court ActSections 3 and 12(1)(3)
  • Labour Relations ActSection 62
  • Employment and Labour Relations Court (Procedure) RulesRules 16 and 27
  • Fair Administrative Action ActNo. 4 of 2015

Cases cited (2)

  • Professor Gitile N. Naituli vs University Council Multimedia University of Kenya
    Cause No. 1200 of 2013
  • Rose W. Kiragu vs Teachers Service Commission
    (2016) eKLR, Nairobi ELRC 1607 of 2016
Jurisdiction invoked
Article 41(1) and (2)(b) of the Constitution; sections 41, 44 and 45(1) of the Employment Act; sections 3 and 12(1)(3) of the Employment and Labour Relations Court Act

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, "Michael Ekai Aremon v Anti-Counterfeit Agency [2019] KEELRC 2041 (KLR)", Case Analysis (2019). Not stated in judgment (Cause number not indicated on the extracted text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2041/eng@2019-03-04

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