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ELRCPartially AllowedCause No 211 of 2016· [2020] KEELRC 932 (KLR)

Alexander Irungu Wanjiru v The Registered Trustees Of The Sisters Of Mercy (Kenya) T/A Mater Misericordiae Hospital [2020] KEELRC 932 (KLR)

Employment and Labour Relations Court of Kenya
29 May 2020
2,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court found The Mater Hospital unfairly dismissed its director because the employer's own witnesses admitted there was no valid reason, awarding him about Kshs. 6.57 million.

What this practically means

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Executive summary

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The claimant, employed by the respondent from May 2014 and confirmed as Director of Operations and Administration on a two-year contract from 01.06.2015 to 30.05.2017 at Kshs. 470,000 per month, was summarily dismissed by a letter dated 12.02.2016 following a disciplinary hearing on allegations of gross misconduct, including irregular alteration of the procurement policy, irregular award of a tender to Kenya Medical Engineering, directing inflated cafeteria supplies, and irregular staff promotions and salary awards. He sued for reinstatement, a declaration that the termination was void, 24 months' salary for unfair termination, notice pay, service pay, gratuity, a certificate of service and costs. The court found the procedural requirements of notice and hearing under section 43 of the Employment Act were met: the claimant received a detailed show-cause letter and attended the disciplinary hearing, and the interim orders in Cause No. 141 of 2016 did not impair the proceedings. However, on substance, the respondent's own acting CEO conceded in evidence that the claimant had not accessed the policy document when the alteration was allegedly made, that experts had participated in the tender award, that there was no evidence of inflated supply prices attributable to the claimant, and that promotions were outside his role. The court held there were no valid reasons for termination as at the time of termination and declared the dismissal unfair. Reinstatement was refused as impracticable and statutorily barred after more than three years. The court awarded 12 months' salary as compensation, half month's salary for days worked, one month in lieu of notice, prorated gratuity of Kshs. 229,125, a certificate of service, costs, and a stay of execution until 01.10.2020 owing to Covid-19.

Key legal issues

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01

Whether the termination was procedurally fair under section 43 of the Employment Act

Holding

Due process of notice and hearing was complied with; the disciplinary process met the basic tenets of fairness

Reasoning

The claimant received a detailed show-cause letter dated 02.02.2016 setting out five allegations, was invited to a disciplinary hearing and attended it. The prior court order in Cause No. 141 of 2016 did not relate to the disciplinary proceedings and did not impair them in any material respect. The claimant never named his proposed witnesses before or at the hearing, so the contention that tender committee members should have been his witnesses failed.

p. 3
02

Whether there were valid reasons for the termination as at the time of termination

Holding

No valid reasons were established; the termination was unfair in substance or merits

Reasoning

RW1 (Dr. Agnes Kabita Chege, acting CEO) conceded that the claimant had not accessed the policy document when the alteration was allegedly made, that experts participated in and supported the tender award, that there was no evidence of inflated cafeteria supplies on the claimant's direction, and that promotions and salary decisions were outside the claimant's role. Each allegation accordingly collapsed, and the decision-maker's own evidence confirmed the absence of valid reasons.

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03

What remedies flow from the unfair termination

Holding

Twelve months' salary as compensation, half month's salary for days worked in February 2016, one month's salary in lieu of notice, prorated gratuity, a certificate of service and costs; reinstatement refused

Reasoning

Under section 49 of the Employment Act, the court considered that the contract had over 12 months to run, the claimant desired to continue in employment, had a clean record, and his request for adjournment to obtain documents and witnesses was refused, which the court treated as an aggravating factor. The claimant had not contributed to his termination, justifying 12 months' compensation. Notice pay followed the contract and section 35; gratuity was prorated per clause 9; reinstatement was impracticable and statutorily barred after more than three years.

p. 4

Legal principles established

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  • An employer must establish valid and fair reasons for termination as at the time of termination under section 43 of the Employment Act, 2007; allegations not substantiated as at that time render the termination unfair in substance
  • Where an employer's own decision-maker concedes in evidence that there was no valid reason to terminate, that evidence is conclusive on the question of unfair termination
  • Reinstatement as a remedy is impracticable where the employment relationship has irretrievably broken down and is barred where more than three years have lapsed since dismissal, per section 12 of the Employment and Labour Relations Court Act, 2011

Court orders

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  1. 1.Declaration that the termination of the claimant's employment by the respondent was unfair
  2. 2.Respondent to pay the claimant Kshs. 6,574,125.00 (less lawful PAYE) by 01.10.2020, failing interest at court rates from the date of judgment until full payment
  3. 3.Respondent to deliver to the claimant a certificate of service in 30 days from the date of the judgment
  4. 4.Stay of execution until 01.10.2020 in view of the prevailing Covid-19 situation
  5. 5.Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 44(4)(c) and (g)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 35
  • Employment Act, 2007section 49
  • Employment and Labour Relations Court Act, 2011section 12

Cases cited (1)

  • Cause No. 141 of 2016 (Nairobi) - orders of Abuodha J
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 12 (Employment Act, 2007 remedies under sections 35, 43, 44, 49)

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, "Alexander Irungu Wanjiru v The Registered Trustees Of The Sisters Of Mercy (Kenya) T/A Mater Misericordiae Hospital [2020] KEELRC 932 (KLR)", Case Analysis (2020). Cause No 211 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/932/eng@2020-05-29

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