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ELRCPartially AllowedCause No 336 of 2014· [2020] KEELRC 863 (KLR)

Paul Okumu Onyango v Kenya Airways Limited [2020] KEELRC 863 (KLR)

Employment and Labour Relations Court
5 June 2020
MOMAUREEN ONYANGO
3,100 words in judgment
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The bottom line

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Kenya's Employment Court ruled Kenya Airways unfairly fired a worker over a workplace accident because it proved no negligence and denied him a fair hearing, awarding damages.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 13th November 2006 and promoted to loading supervisor on 23rd December 2009, was summarily terminated on 8th April 2010 following an accident on 14th March 2010 in which a conveyor belt he was operating struck and damaged an aircraft on the passenger ramp. He alleged unfair termination, citing shortage of equipment operators, poor visibility, an unseen drainage trench, and flawed disciplinary procedure, and sought a declaration of nullity, reinstatement, service pay, maximum compensation, underpayments and costs. The respondent contended that the claimant was not authorised to operate equipment in his new role, that he accelerated instead of braking, and that Sections 41 and 43 of the Employment Act were complied with, relying on Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited. The court framed three issues: justification of the reason for termination, procedural fairness, and entitlement to reliefs. It found the claimant was not negligent and that the incident was an accident, and that the procedure was flawed because specific charges were never framed before the disciplinary hearing and the investigation report was not availed to him. The termination was declared unfair under Sections 45(4) and (5). The court awarded five months' compensation (Kshs.396,520.00) under Section 49(4), refused reinstatement and a nullity declaration as over three years had lapsed, and dismissed the underpayment claim for lack of basis. The respondent was ordered to pay costs, with interest on the decretal sum from the date of judgment.

Key legal issues

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01

Validity of the reason for termination

Holding

The reason was not justified; the incident was an accident and not negligence by the claimant

Reasoning

The court found the conveyor belt had no speedometer and RW1 admitted the brakes and accelerator were adjacent, making it possible to accelerate instead of braking. The claimant was licensed to operate the equipment and acted due to shortage of operators. RW1 confirmed the incident was treated as an accident and was not intentional. The respondent did not prove malice or intent.

p. 4
02

Procedural fairness of the termination

Holding

Procedure was flawed; termination unfair under Section 45(4) and (5)

Reasoning

The claimant was suspended and asked only to explain what happened, but was never informed of the specific charges he was to face at the disciplinary hearing. The investigation report relied upon was not availed to him, denying him the opportunity to interrogate it. Citing Anthony Mkala Chitavi v Malindi Water & Sewerage Co Ltd, the court held that framing of charges is a concomitant of the statutory right to be informed under Section 41.

p. 6
03

Entitlement to remedies

Holding

Five months' compensation for unfair termination awarded; reinstatement, nullity declaration and underpayment claims refused

Reasoning

The court exercised discretion under Section 49(4) of the Employment Act, considering the claimant's years of service and other relevant factors. Reinstatement was unavailable since more than three years had lapsed. The underpayment claim failed for want of basis, and general/exemplary damages were not pleaded.

p. 6

Legal principles established

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  • An employer must frame specific charges for an employee to respond to at a disciplinary hearing as an ingredient of procedural fairness under Section 41
  • An employer bears the burden of proving reasons for termination, failing which the termination is unfair under Sections 43 and 45
  • Where an incident is shown to be an accident and not intentional negligence, termination on grounds of gross misconduct is unjustified

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Award of 5 months' compensation for unfair termination in the sum of Kshs.396,520.00
  3. 3.Judgment entered in favour of the claimant against the respondent in the sum of Kshs.396,520.00
  4. 4.Respondent to bear the costs of the suit
  5. 5.The decretal sum to accrue interest from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43(1)
  • Employment ActSection 45(4) and (5)
  • Employment ActSection 49(4)
  • Employment ActSections 46, 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Anthony Mkala Chitavi v Malindi Water Sewerage Company Limited
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45, 49); Civil Procedure Act and Article 159(2)(d) and 48 of the Constitution referenced for delivery of judgment

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, "Paul Okumu Onyango v Kenya Airways Limited [2020] KEELRC 863 (KLR)", Case Analysis (2020). Cause No 336 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/863/eng@2020-06-05

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