Claudette Nakhumicha Alusa v Central Memorial Hospital Limited [2020] KEELRC 1334 (KLR)
The bottom line
#A Kenyan hospital couldn't prove why it fired a worker, so the court ordered compensation — employers must document disciplinary processes.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for the dismissal
The Respondent failed to prove a valid reason for the dismissal under Section 43 of the Employment Act
The employer alleged the Claimant colluded with others to obtain money by false pretences from a patient. However, no report was made to the police and no evidence of a disciplinary panel or its proceedings was produced. The minutes of the meeting were not exhibited. The employer therefore failed to discharge its burden under Section 43, rendering the dismissal substantively unfair under Section 45.
Procedural fairness of the disciplinary process
The process did not fully comply with Section 41 and Articles 47 and 50, and the termination was tinged with irregularity, though a Section 41 hearing need not mirror a criminal trial
The Claimant was suspended and charged without proper investigations, given a backdated warning, and faced a panel without notice of the hearing. However, the court tempered this by holding that a Section 41 hearing need not provide the same protections as a criminal process, such as disclosure of all materials the employer intends to rely on.
Entitlement to terminal dues and certificate of service
The Claimant was entitled to her October 2017 salary and a certificate of service under Section 51 of the Employment Act
The Claimant worked in October 2017 and there was no proof of payment for days worked. The Respondent did not prove issuance of a certificate of service under Section 51, and was ordered to issue it within 7 days, default of which attracts a fine of Kshs. 100,000/-.
Remedy for unfair dismissal
Compensation under Section 49 of the Employment Act, capped at 6 months' salary, rather than salary for the unexpired contract term
The Court held it lacks power to order payment of salary to the expiry of the contract. Instead, under Section 49 of the Employment Act, the Claimant was entitled to compensation, which the court capped at 6 months' gross salary of Kshs. 22,000/-, totaling Kshs. 132,000/-.
Legal principles established
#- Termination of employment must accord with both substantive and procedural fairness
- An employer bears the burden of justifying a dismissal, failing which it is unfair under Section 45 of the Employment Act
- A disciplinary hearing under Section 41 of the Employment Act need not conform to a criminal trial; the employer is not obliged to supply all material it intends to rely on
- An employee is entitled to salary for days worked and a certificate of service
Court orders
#- 1.Kshs. 22,000/- being the Claimant's October 2017 salary
- 2.Compensation for unfair dismissal capped at 6 months' salary, Kshs. 132,000/-
- 3.Costs of the suit to the Claimant
- 4.Interest at court rates from October 2017 on the sum of Kshs. 22,000/-
- 5.Interest at court rates on the Kshs. 132,000/- from date of judgment until payment in full
- 6.Certificate of service to be issued within 7 days failing which a fine of Kshs. 100,000/- shall be imposed
- 7.Execution of the judgment automatically stayed for 14 days
- Jurisdiction invoked
- Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (court's jurisdiction over employment disputes implied by the pleadings and Section 12 of the Employment and Labour Relations Court Act cited in the reliefs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Claudette Nakhumicha Alusa v Central Memorial Hospital Limited [2020] KEELRC 1334 (KLR)", Case Analysis (2020). Cause No 38 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1334/eng@2020-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.