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ELRCPartially AllowedCause No 38 of 2018· [2020] KEELRC 1334 (KLR)

Claudette Nakhumicha Alusa v Central Memorial Hospital Limited [2020] KEELRC 1334 (KLR)

Employment and Labour Relations Court
30 March 2020
3,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed in February 2017 as a lecturer in Medical Laboratory and later redeployed as a laboratory technician, was summarily dismissed on 4th November 2017 following a patient's complaint that she solicited Kshs. 1,000/- by false pretences for laboratory tests. She sued for a declaration that her termination was unlawful and unfair, infringement of Articles 41, 47 and 50 of the Constitution, twelve months' salary compensation, salary for the unexpired contract term, withheld October 2017 salary, notice pay, exemplary damages, a statutory fine, certificate of service, interest and costs. The Respondent maintained that due process was followed and that the Claimant was lawfully dismissed for gross misconduct after colluding with others to obtain money from an insured patient. The court found that the employer failed to prove a valid reason for the dismissal under Section 43 of the Employment Act, as no evidence of the disciplinary panel's proceedings was availed, no police report was made, and the minutes were not produced. The dismissal therefore lacked substantive justification and fell foul of the requirement for both substantive and procedural fairness. However, the court held that a Section 41 disciplinary hearing need not replicate criminal trial protections, including disclosure of all materials to be relied upon. The claim was partially allowed: the Claimant was awarded Kshs. 22,000/- for October 2017, six months' salary compensation of Kshs. 132,000/- under Section 49, costs, and interest. The claim for salary to the expiry of the contract was refused as not grantable. The Respondent was ordered to issue a certificate of service within 7 days, failing which a fine of Kshs. 100,000/- would be imposed. Execution was stayed for 14 days.

Key legal issues

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01

Substantive justification for the dismissal

Holding

The Respondent failed to prove a valid reason for the dismissal under Section 43 of the Employment Act

Reasoning

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.

p. 3
02

Procedural fairness of the disciplinary process

Holding

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

Reasoning

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.

p. 3
03

Entitlement to terminal dues and certificate of service

Holding

The Claimant was entitled to her October 2017 salary and a certificate of service under Section 51 of the Employment Act

Reasoning

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/-.

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04

Remedy for unfair dismissal

Holding

Compensation under Section 49 of the Employment Act, capped at 6 months' salary, rather than salary for the unexpired contract term

Reasoning

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/-.

p. 3

Legal principles established

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  • 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

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  1. 1.Kshs. 22,000/- being the Claimant's October 2017 salary
  2. 2.Compensation for unfair dismissal capped at 6 months' salary, Kshs. 132,000/-
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at court rates from October 2017 on the sum of Kshs. 22,000/-
  5. 5.Interest at court rates on the Kshs. 132,000/- from date of judgment until payment in full
  6. 6.Certificate of service to be issued within 7 days failing which a fine of Kshs. 100,000/- shall be imposed
  7. 7.Execution of the judgment automatically stayed for 14 days

Authorities

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Legislation

  • Constitution of KenyaArticles 35, 41, 41(1), 41(2)(b), 47, 50
  • Employment ActSections 41, 43, 45, 49, 51, 51(3), 90
  • Fair Administrative Actions ActSections 4(3)(g), 4(4)(a)
  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure RulesOrder 21 Rules 1 and 3

Cases cited (7)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Ltd
    [2014] eKLR
  • James Ondima Kabesa v Trojan International Limited
    [2017] eKLR
  • Vicky Kemunto Ocharo v Independent Policing Oversight Authority
    [2018] eKLR
  • Samuel Muchiri Gikonyo v Henkel Chemicals (EA) Limited
    [2014] eKLR
  • Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Ltd
    [2013] eKLR
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

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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, "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.