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ELRCPartially AllowedCause No 25 of 2015· [2020] KEELRC 975 (KLR)

Stephen Chase Kisaka v Emirates Airline Limited [2020] KEELRC 975 (KLR)

Employment and Labour Relations Court
21 May 2020
4,737 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Emirates unfairly dismissed a manager because the airline couldn't prove its reasons and ran a flawed disciplinary hearing, awarding millions in compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent airline in 2006 and transferred to Nairobi as Sales Manager in 2007, was suspended in August 2014 and summarily dismissed on 27/10/2014 on grounds of gross negligence for failing to report an allegation that a sales staff member was collecting money from a travel agency, and failing to disclose a conflict of interest involving two of his staff whose spouses worked in the travel industry. He sought general and exemplary damages, various terminal dues, profit share, concessional tickets, notice pay, a certificate of service and, in the alternative, reinstatement. The Court framed three issues: validity of the reasons for dismissal, fairness of the disciplinary process, and entitlement to remedies. On the first, the Court found the Respondent failed to prove the reasons: the alleged errant staff member was never identified, the Group Security investigation report and complaints were never produced, and the two conflicted staff remained in employment. On the second, the process was flawed: the Country Manager chaired the hearing despite an objection for recusal, and requested documents including the investigation report were withheld, contrary to Article 50(1) of the Constitution and the Fair Administrative Action Act. The dismissal was therefore unfair and unjustified under section 45(2) of the Employment Act. The Court awarded earned concessional tickets worth $27,000, one month's pay in lieu of notice (Kshs. 504,189), 10 months' salary as compensation (Kshs. 5,041,890) and 9 weeks' profit share (Kshs. 1,104,616.75), plus a certificate of service. Unproved claims for leave, underpayment, travel allowance and future tickets were rejected. The Respondent was ordered to pay costs plus interest at court rates from the date of judgment.

Key legal issues

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01

Whether there were valid reasons for the dismissal

Holding

No valid reasons were proved; the alleged misconduct (failure to report a staff member collecting money, failure to disclose conflict of interest) was not established

Reasoning

The Claimant denied knowledge of the staff member collecting money from a travel agency and the name was never disclosed. RW1 could not identify the staff member either. The investigation report by Group Security and the complaints against the sales team were never produced in court. The two conflicted staff (Francis and Morris) continued in employment after the Claimant was dismissed. The Respondent failed to discharge its burden under section 43 of the Employment Act.

p. 6
02

Whether the disciplinary process was fair

Holding

The process was flawed and unfair; the Claimant's right to fair labour practices was breached

Reasoning

The Country Manager, Anita Kongson, insisted on chairing the disciplinary hearing despite the Claimant's objection for her recusal, sitting as accuser and judge. The Respondent refused to supply the investigation report and other requested documents, breaching Article 50(1) of the Constitution and sections 4(1), 4(3)(g) and 7(2)(a) of the Fair Administrative Action Act. The minutes of the hearing were not provided and the decision-makers (Human Resource in Dubai) were not properly connected to the process.

p. 7
03

Entitlement to remedies

Holding

Claimant awarded earned tickets ($27,000), one month's pay in lieu of notice, 10 months' salary as compensation and 9 weeks' profit share; certificate of service to issue

Reasoning

Given the absence of valid reasons and the flawed process, 10 months' gross salary was awarded as compensation under section 49. Notice pay was awarded despite summary dismissal because the dismissal itself was unfair. Profit share was awarded as RW1 admitted the Claimant was in employment and contributed to the profits. Unproved monetary claims (leave, underpayment, travel allowance, future tickets) were rejected.

p. 7

Legal principles established

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  • The employer bears the burden of proving the reasons for termination, failing which the termination is unfair under section 45
  • An employee is entitled to be supplied with documents and information to be relied upon in a disciplinary hearing, and a panel member perceived as a complainant should not chair the hearing
  • Termination is unfair where the employer fails to prove a valid reason, a fair reason and a fair procedure

Court orders

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  1. 1.Award of earned tickets for a year under prayer (e) - $27,000 at the dollar rate to Kenya shillings as at date of judgment
  2. 2.Payment of 1 month's salary in lieu of notice of Kshs. 504,189
  3. 3.10 months' salary as compensation for unfair dismissal (10 x 540,189) = Kshs. 5,041,890
  4. 4.Profit share for 9 weeks awarded as prayed at Kshs. 1,104,616.75
  5. 5.No other monetary relief awarded as other prayers were not proved
  6. 6.The Claimant to be issued with a Certificate of Service
  7. 7.The Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 41 (right to fair labour practices)
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 44(4)(c)
  • Employment Act 2007Section 41
  • Fair Administrative Action ActSection 4(1)
  • Fair Administrative Action ActSection 4(3)(g)
  • Fair Administrative Action ActSection 7(2)(a)

Cases cited (9)

  • Donald Odeke vs. Fidelity Security Limited
    [2012] eKLR
  • Kiama Wangai vs. Egerton University
    [2016] eKLR
  • Patrick Abuya vs. Institute of Certified Public Accountants of Kenya (ICPAK) & Another
    [2015] eKLR
  • Joshua Rodney Marimba vs. Kenya Revenue Authority
    [2019] eKLR
  • Judicial Service Commission vs. Gladys Boss Shollei & Another
    [2014] eKLR
  • Leland I. Salano vs. Intercontinental Hotel
    [2013] eKLR
  • Anthony Mkala Chitavi vs. Malindi Water Company Limited
    [2013] eKLR
  • Bett Francis Barngetuny & Another vs. Teachers Service Commission & Another
    [2015] eKLR
  • Margaret Omondi vs. Kenya Authority
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007, Articles 41 and 50(1) of the Constitution invoked)

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, "Stephen Chase Kisaka v Emirates Airline Limited [2020] KEELRC 975 (KLR)", Case Analysis (2020). Cause No 25 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/975/eng@2020-05-21

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