Marie Claire Bisamaza v Regional Centre On Small Arms in The Great Lakes Region, The Horn of Africa and Boardering States (RECSA) [2020] KEELRC 1275 (KLR)
The bottom line
#A Kenyan court awarded a dismissed employee €86,667 because her employer's disciplinary committee didn't follow its own staff rules and ignored her appeal.
What this practically means
#Executive summary
#Key legal issues
#Composition of the disciplinary committee
The committee's composition violated clause 9.2.6.1 of the Revised RECSA Staff Manual as it comprised 7 members instead of 3, including the complainant Director
The court found clause 9.2.6.1 of the staff manual couched in mandatory terms requiring a committee of three members excluding the Unit Director who carried out investigations. The evidence showed the complainant, the Director of Administration and Finance, sat as a proxy. This breach also engaged Section 7(2)(a)(i), (ii) and (g) of the Fair Administrative Action Act 2015, warranting review of the decision.
Right to be heard on appeal
The Respondent's failure to hear and determine the Claimant's appeal violated her right to fair administrative action under Article 47 and Section 4(3)(c) of the FAAA
The Claimant communicated her intention to appeal by letter of 8/6/2017 but the Respondent never responded. Section 4(3)(c) of the Fair Administrative Action Act provides for a right to appeal, and the court found the denial of this right contravened Article 47 of the Constitution, from which the FAAA draws its life, rendering the dismissal procedurally unfair.
Unfair termination under Section 45(2) of the Employment Act
The dismissal was unfair and unjustified because the Respondent failed to prove a valid reason and fair procedure
The court applied Section 45(2) of the Employment Act 2007, which places the burden on the employer to prove both a valid and fair reason and a fair procedure. Having found the disciplinary committee wrongly constituted and the appeal unheard, the Respondent failed to demonstrate fair procedure, and the dismissal was therefore unfair and unjustified, attracting compensation.
Legal principles established
#- A disciplinary committee must be constituted strictly in accordance with the employer's staff manual, and deviation renders the dismissal procedurally unfair
- Failure to allow an appeal against dismissal denies the employee fair administrative action under Article 47 of the Constitution
Court orders
#- 1.Payment of salary for May 2017 of 8,000 Euros
- 2.Payment of 1 month's salary in lieu of notice of 8,000 Euros
- 3.Payment of prorata leave for 10 months at 2.5 days per month of 6,667 Euros
- 4.Payment of 8 months' salary as compensation for unfair termination of 64,000 Euros
- 5.Total award of 86,667 Euros less statutory deductions
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (3) (vi); Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marie Claire Bisamaza v Regional Centre On Small Arms in The Great Lakes Region, The Horn of Africa and Boardering States (RECSA) [2020] KEELRC 1275 (KLR)", Case Analysis (2020). Cause No. 1276 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1275/eng@2020-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.