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ELRCPartially AllowedCause No 1178 of 2014· [2020] KEELRC 1096 (KLR)

Gibert Amanya Kalibo v Eurocraft Agencies Ltd [2020] KEELRC 1096 (KLR)

Employment and Labour Relations Court at Nairobi
14 May 2020
ANAbuodha Jorum Nelson
1,351 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fires staff without written charges and a fair hearing must pay compensation, even when it claims misconduct.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2002 as a cabin supervisor, alleged that on 23rd January 2014 the respondent took away his KAA entry pass and denied him access to the airport, effectively terminating his employment without a lawful reason or fair procedure. The respondent admitted the employment but justified the dismissal on grounds of misconduct, alleging the claimant incited fellow employees to believe management was cursed and needed a witchdoctor to unravel why two directors had been hospitalised, and that at a hearing he was unruly and showed no remorse. The respondent also pleaded a deduction of Kshs 92,309/= for a loss at Aircraft 5942KQ and denied liability for service pay given NSSF contributions. In evidence, the respondent's witness conceded that the claimant was never given advance notice of the charges, and no other staff were called as witnesses to the alleged incitement. The court held that an employer bears the burden of proving both valid reasons and fair procedure, and found that the respondent failed on both counts: the allegations were outlandish and unproved, and the claimant was not furnished with a show-cause letter or a proper disciplinary hearing. The court awarded the claimant eight months' salary of Kshs 164,392 in addition to his uncollected terminal benefits, subject to taxes and statutory deductions, allowed the agreed deduction of Kshs 92,309/= for the aircraft loss, and awarded the claimant costs of the suit.

Key legal issues

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01

Validity of the reasons for termination

Holding

The respondent failed to prove or justify the reasons for the termination of the claimant's service

Reasoning

The termination letter alleged the claimant incited workers over witchcraft concerning the directors' illness. No evidence of those allegedly incited was called, and the claimant denied the allegations. The court found the allegations unsubstantiated and held the respondent failed to justify the reasons for dismissal.

p. 2
02

Fairness of the procedure adopted

Holding

The termination was carried out through an unfair procedure

Reasoning

The claimant was never given advance notice of the allegations, a fact conceded by the respondent's witness. No show-cause letter was issued and no proper disciplinary hearing was conducted where the claimant could be heard or call evidence; the respondent also called no witnesses to the alleged incitement.

p. 2

Legal principles established

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  • On the part of the employer the burden is usually cast upon such employer to prove and or justify the reason for which an employment contract has been terminated and further that the termination has occurred in accordance with a fair procedure.
  • An employee facing allegations of misconduct must be furnished with advance notice of the charges and given a hearing where he can be heard and call evidence.

Court orders

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  1. 1.Award of eight months' salary of Kshs 164,392 in addition to the claimant's terminal benefits already calculated but not collected
  2. 2.The deduction of Kshs 92,309/= for the loss occasioned at Aircraft 5942KQ to stand so deducted from the claimant's terminal dues
  3. 3.The claimant to have costs of the suit
  4. 4.The award to be subject to taxes and statutory deductions

Authorities

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Legislation

  • Employment Actgeneral (termination for good reason and in accordance with fair procedure)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (article 162(2) jurisdiction of the ELRC inferred from the cause)

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, "Gibert Amanya Kalibo v Eurocraft Agencies Ltd [2020] KEELRC 1096 (KLR)", Case Analysis (2020). Cause No 1178 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1096/eng@2020-05-14

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