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ELRCDismissedCause No 2036 of 2014· [2019] KEELRC 2420 (KLR)

Emmanuel Odhiambo Oyugi v African Institute for Health and Development [2019] KEELRC 2420 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
25 January 2019
ANAbuodha Jorum Nelson
1,374 words in judgment
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The bottom line

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Kenya's Employment Court dismissed an unfair termination claim, ruling the employee proved neither unfair dismissal nor that proper procedure was breached.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 1st February 2011 and last engaged on a two-year contract due to lapse on 1st October 2015 at a basic salary of Kshs 63,250, alleged that his services were terminated on 4th September 2014 by the respondent's executive director on allegations of misconduct, unprocedurally and contrary to the respondent's human resource policy manual. The respondent maintained the termination was lawful, contending the claimant engaged in procurement procedures causing loss of resources, absconded work, and had himself offered to terminate his services at a meeting, thereafter serving a two months' notice. The claimant testified that he was accused of impropriety in procurement, was asked to resign but refused, and was not given an opportunity to explain himself per the HR Manual; he also claimed unpaid salary for September and October. The respondent's witness, Mr Sammy Tonui, conceded in cross-examination that no show cause letter was issued and that the termination letter did not disclose the misconduct. The court, applying section 47(5) of the Employment Act on burden of proof, found the claimant had been involved in procurement despite being warned to keep off, creating a conflict of interest, and that his frequent absenteeism justified termination under section 44(4)(a). On procedure, the court held the parties' extensive correspondence obviated a physical meeting and that the claimant's service of the two months' notice without complaint undercut his complaint. The claim was found without merit and dismissed with costs.

Key legal issues

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01

Whether the termination was substantively justified

Holding

Justifiable reasons existed for termination - conflict of interest in procurement and frequent absenteeism

Reasoning

The claimant was involved in procurement despite being asked to keep off procurement matters, creating a conflict of interest with the employer. His frequent unexplained absenteeism was documented in emails and witnessed testimony. Section 44(4)(a) permits summary dismissal for absence without lawful cause. The claimant failed to discharge his burden under section 47(5) to show the termination was unfair.

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02

Whether the termination procedure was fair

Holding

The procedure followed was satisfactory despite absence of a show cause letter or physical meeting

Reasoning

Although the respondent's witness conceded no show cause letter was issued and allegations were discussed verbally, the claimant's own documents showed he was properly informed of the allegations and his responses were documented. Extensive electronic correspondence made a physical meeting superfluous, and the claimant was issued two months' notice which he served without complaint before disputing the termination.

p. 2

Legal principles established

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  • An employee must not put himself in a position of conflict of interest with the employer
  • Under section 47(5) of the Employment Act the burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
  • Absence from the workplace without leave or other lawful cause permits summary dismissal under section 44(4)(a) of the Employment Act

Court orders

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  1. 1.The claim is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 44(4)(a)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim of unfair termination)

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, "Emmanuel Odhiambo Oyugi v African Institute for Health and Development [2019] KEELRC 2420 (KLR)", Case Analysis (2019). Cause No 2036 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2420/eng@2019-01-25

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