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ELRCDismissed· [2020] KEELRC 35 (KLR)

Charles Fundi Njiru v Board of Management Baricho High School [2020] KEELRC 35 (KLR)

Employment and Labour Relations Court
23 September 2020
NMNzioki wa Makau
1,649 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan teacher lost his unfair dismissal case because he skipped the disciplinary hearing the school had summoned him to attend.

What this practically means

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Executive summary

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The Claimant, a BOM teacher at Baricho High School, sued the Respondent alleging that his two-year contractual employment (1st May 2013 to 1st May 2015), at a salary of Kshs. 16,320/-, was verbally and prematurely terminated on 9th March 2015 by the BOM Secretary, Isaac Wachira, without cause and without a hearing. He sought maximum compensation of Kshs. 195,840/-, one month's salary in lieu of notice, unpaid salary for March to May 2015, costs and interest. The Respondent denied the verbal dismissal, asserting instead that the Claimant absconded duty from 14th January 2015, failed to respond to letters requiring an explanation, failed to attend a disciplinary hearing before the Board, and took students' pocket money of Kshs. 2,200/-. The Respondent's witness, the school Principal, testified that the Claimant never appeared before the Board. The court held that under Section 47(5) of the Employment Act the burden of proving unfair termination rested on the employee. The Claimant, having been summoned to a disciplinary hearing at an address he did not disown but neither responding nor attending, could not claim he was denied a hearing. He failed to discharge his statutory burden. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the Claimant proved unfair termination

Holding

The Claimant failed to discharge his burden under Section 47(5) and the suit was dismissed.

Reasoning

The court applied Section 47(5) of the Employment Act, which places the burden of proving unfair termination on the employee. The Respondent had summoned the Claimant by letter to a disciplinary hearing before the BOM, sent to a postal address the Claimant did not disown. The Claimant neither responded to the letters nor attended the disciplinary meeting. Having failed to attend, he could not claim he was denied a hearing, and his evidence did not rebut the assertion of abscondment.

p. 3

Legal principles established

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  • An employee who claims unfair termination bears the burden of proving it, while the employer bears the burden of justifying the grounds for termination.
  • An employee who fails to attend a disciplinary meeting cannot later claim he was not heard or given an opportunity to defend himself.

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 4(a)
  • Cap 39 (Employment Act)
  • Cap 40 Laws of Kenya

Cases cited (2)

  • Shadrack Mwaniki Ngari v Aegis Construction Limited
    [2018] eKLR
  • GMK v Kenyatta National Hospital
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Cap 39) - not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Fundi Njiru v Board of Management Baricho High School [2020] KEELRC 35 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/35/eng@2020-09-23

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