Rutaganda Viateur v Embu Children’s Hospital (TENRI) [2020] KEELRC 1101 (KLR)
The bottom line
#A Kenyan court ruled a hospital unfairly fired its dental surgeon because it never gave him a hearing or proved misconduct, awarding him over Kshs. 1.5 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal followed fair procedure under Section 41 of the Employment Act
The dismissal on 21st February 2019 violated Section 41 as no hearing was conducted and no explanation was sought from the Claimant before dismissal
Section 41 requires the employer to explain the reasons for termination in a language the employee understands and to hear representations before terminating for misconduct or poor performance. The correspondence showed the Claimant was suspended and then dismissed without being asked to give any explanation. The dismissal was therefore summary in nature and breached the terms of engagement, rendering it unlawful and unfair.
Whether the Respondent proved the reasons for termination under Section 43
The Respondent failed to prove the alleged negligence, poor performance or gross misconduct, so the dismissal was unfair
Section 43 places the burden on the employer to prove the reasons for termination. The Respondent alleged incompetence, negligence and mishandling of patients but adduced no evidence beyond letters of reprimand. Mere insinuations in letters do not constitute evidence. The Claimant's performance evaluation rated him 7 out of 10 and no proof of professional negligence was adduced, so the dismissal was unlawful.
Notice entitlement on termination
The Claimant was entitled to one month's notice or salary in lieu, not three months
The Claimant contended the law required 3 months' notice, but neither his contract nor the statute provided for that period. On summary dismissal without notice, the entitlement is one month's notice or one month's salary in lieu, which the court awarded at Kshs. 250,000/-.
Untaken leave and off days
Leave of 11 days was payable as the employer, keeper of records, did not rebut; off days claim failed for lack of proof
The Claimant produced a leave application form showing a balance of 11 days. The Respondent, as keeper of records, did not avail proof to the contrary, so the leave entitlement stood. However, the Claimant did not demonstrate entitlement to the 10 off days alleged, and that head failed.
Legal principles established
#- An employer must prove the reasons for termination, failing which the termination is unfair under section 45 of the Employment Act
- Before dismissal for misconduct, an employer must explain the reasons to the employee in a language the employee understands and hear any representations
- A dismissal without hearing, notice or opportunity to explain is summary and unlawful; mere allegations in letters are not evidence of misconduct
Court orders
#- 1.One month's salary in lieu of notice – Kshs. 250,000/-
- 2.Salary for February 2019 – Kshs. 250,000/-
- 3.Four months' salary as compensation for the unlawful dismissal – Kshs. 1,000,000/-
- 4.Costs of the suit to the Claimant
- 5.Certificate of service in terms of Section 50 of the Employment Act
- 6.Interest at court rates on the sums in (a), (b) and (c) from the date of judgment till payment in full
- 7.Automatic stay for 14 days in line with the Chief Justice's COVID-19 guidelines
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act 2007 and the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rutaganda Viateur v Embu Children’s Hospital (TENRI) [2020] KEELRC 1101 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1101/eng@2020-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.