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ELRCPartially AllowedCause No. 1276 of 2017· [2020] KEELRC 1275 (KLR)

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)

Employment and Labour Relations Court
12 March 2020
2,284 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a civil engineer employed by the Respondent as AU-EU Project Coordinator, challenged her summary dismissal of 23rd May 2017 following a disciplinary hearing on 17th May 2017. She alleged the disciplinary committee was improperly constituted contrary to clause 9.2.6.1 of the Revised RECSA Staff Manual 2016, comprising seven members instead of three and including the complainant Director who sat as a proxy, and that her appeal was never heard or determined despite her letter of 8th June 2017. The Respondent entered appearance but filed no response, so the claim proceeded by formal proof. The court found clause 9.2.6.1 couched in mandatory terms requiring a three-member committee excluding the investigating Unit Director, and held the committee's composition breached the Manual and the Fair Administrative Action Act 2015, Section 7(2). The failure to hear the appeal violated the Claimant's right to fair administrative action under Article 47 of the Constitution. Applying Section 45(2) of the Employment Act, the court found the dismissal unfair and unjustified. In remedies, the court awarded her May salary (8,000 Euros), one month's salary in lieu of notice (8,000 Euros), prorata leave for 10 months (6,667 Euros) and eight months' salary as compensation for unfair termination (64,000 Euros), totalling 86,667 Euros less statutory deductions, plus costs and interest. Claims for a declaration of nullity, reinstatement and general damages were not granted in the terms sought.

Key legal issues

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01

Composition of the disciplinary committee

Holding

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

Reasoning

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.

p. 4
02

Right to be heard on appeal

Holding

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

Reasoning

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.

p. 5
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Unfair termination under Section 45(2) of the Employment Act

Holding

The dismissal was unfair and unjustified because the Respondent failed to prove a valid reason and fair procedure

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Payment of salary for May 2017 of 8,000 Euros
  2. 2.Payment of 1 month's salary in lieu of notice of 8,000 Euros
  3. 3.Payment of prorata leave for 10 months at 2.5 days per month of 6,667 Euros
  4. 4.Payment of 8 months' salary as compensation for unfair termination of 64,000 Euros
  5. 5.Total award of 86,667 Euros less statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47; Articles 25 and 50
  • Employment Act, 2007Section 44(4); Section 45(2); Section 49(1)(c)
  • Fair Administrative Action Act, 2015Section 4(3)(c); Section 7(2)(a)(i) & (ii); Section 7(2)(g)
  • Employment and Labour Relations Court ActSection 12(3)(vi)
  • Revised RECSA Staff Manual, 2016Clauses 9.2.6.1, 9.2.6.2, 9.2.6.3

Cases cited (6)

  • Omega Enterprises (Kenya) Limited vs. Kenya Tourist Development Corporation Limited & 2 Others
    [1998] eKLR
  • JMK vs. MWK & Another
    [2015] eKLR
  • Judicial Service Commission vs. Mbalu Mutava & Another
    [2014] eKLR
  • Package Insurance Brokers Limited vs. Simon Gitau Gichuru
    [2019] eKLR
  • Unilever Tea Kenya Limited vs. John Kememia Gitau
    [2017] eKLR
  • Joseph Ileli Kikumbi vs. Central Bank of Kenya
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (3) (vi); Employment Act 2007

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, "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.