Phares Oluoch Olang’o v Mastermind Tobacco (K) Limited [2020] KEELRC 1571 (KLR)
The bottom line
#A Kenyan court ruled that even employees facing serious criminal charges must get a hearing before dismissal, and awarded the worker over Kshs. 500,000.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to warrant dismissal of the Claimant
The Respondent acted on the information that the Claimant was facing serious criminal charges, which justified its consideration of dismissal, but the dismissal was ultimately unfair and unjustified for want of process
The Respondent's report on the robbery incident made no mention of how the Claimant was involved. The criminal court proceedings were not produced, so the court could not examine the trial court's reasoning. Although the pending serious charges gave the Respondent a basis to act, the absence of an internal hearing rendered the dismissal unfair under Section 45(2) of the Employment Act.
Whether there was due process before dismissal
There was no due process; the Claimant was entitled to an interdiction and an internal disciplinary hearing rather than outright dismissal
The court found that notwithstanding the pending criminal charges, the Respondent was obliged to afford the Claimant procedural fairness through an internal disciplinary process. Dismissing him outright without a hearing offended Section 45(2) of the Employment Act, which requires the employer to prove a valid reason, a fair reason and a fair procedure.
Whether the Claimant is entitled to the remedies sought
The Claimant was awarded notice pay, 6 months' compensation, September 2012 salary, accrued leave and house allowance, with costs and interest
Having found the termination unfair, the court awarded one month's notice pay, six months' compensation under the Employment Act, the unpaid September 2012 salary, leave for 33 days and house allowance at 15% of basic salary for 36 months, less statutory deductions, plus costs and interest.
Legal principles established
#- An employee facing serious criminal charges related to his employment is entitled to an interdiction and an internal disciplinary hearing, not outright summary dismissal without due process
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 37,450
- 2.6 months' salary as compensation for unfair and unlawful termination of Kshs. 224,700
- 3.Unpaid salary for September 2012 of Kshs. 37,450
- 4.Leave not taken up to September 2012 (33 days) of Kshs. 41,195
- 5.Unpaid house allowance for 3 years of Kshs. 202,230
- 6.Total award of Kshs. 509,025 less statutory deductions
- 7.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over unfair and unlawful termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phares Oluoch Olang’o v Mastermind Tobacco (K) Limited [2020] KEELRC 1571 (KLR)", Case Analysis (2020). Cause No. 1706 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1571/eng@2020-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.