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ELRCPartially AllowedCause No. 21 of 2019· [2020] KEELRC 1912 (KLR)

Johnson Bironga v Eldo-Rosta Construction Co. Ltd [2020] KEELRC 1912 (KLR)

Employment and Labour Relations Court
23 October 2020
1,971 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employer cannot dismiss an employee on a different ground from the accusations they were given a chance to answer, or without a proper hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent from January 2013 as a site agent/construction manager, sued for unlawful and unprocedural termination of his employment, alleging violation of section 45(2) of the Employment Act. He claimed he was verbally stopped from working, suspended without half pay, and dismissed without a hearing or reasons. The respondent contended that the claimant chronically absented himself from work, was issued a show cause letter, declined to attend a disciplinary meeting, and was lawfully summarily dismissed after due process. The respondent's witnesses, including its director and security officers who maintained attendance registers, testified on the absenteeism, the show cause letter, and a disciplinary meeting. The court observed that the attendance register did not bear the claimant's name and that he supervised two sites two kilometres apart. The court held that the dismissal letter dated 21st January 2019 cited failure to attend a meeting of 17th January 2019, yet no notice of that meeting was produced, and the accusations the claimant had been called to answer concerned chronic absenteeism. Since the claimant was dismissed on a ground different from that over which he had been accorded an opportunity to defend himself, and without a prior disciplinary hearing on the new ground, the dismissal was unfair under section 45 of the Employment Act. However, claims for house allowance, annual leave, severance pay and service pay failed for want of evidence and because the claimant was registered with NSSF. The court awarded one month's salary in lieu of notice (Kshs 100,000), four months' salary as compensation (Kshs 400,000), subject to taxes and statutory deductions, plus costs of the suit.

Key legal issues

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01

Whether the summary dismissal was for a valid reason and in accordance with fair procedure

Holding

The dismissal was unfair under section 45 of the Employment Act because the claimant was dismissed for failing to attend a meeting he was never shown to have been notified of, and not for the chronic absenteeism he had been accused of and given an opportunity to answer.

Reasoning

The court found the accusation levelled against the claimant was chronic absence from work, over which he was given a show-cause letter and a disciplinary meeting. However, the dismissal letter cited failure to attend a meeting on 17th January 2019, and no notice of that meeting was produced. A dismissal on a ground different from that ventilated, without a prior disciplinary hearing, fails the substantive and procedural fairness requirements of section 45.

p. 2
02

Whether the claimant proved the ancillary heads of claim

Holding

Claims for house allowance, annual leave, severance pay and service pay failed for want of evidence and, in the case of service pay, because the claimant was registered with NSSF.

Reasoning

The claimant produced no evidence supporting the house allowance, annual leave and severance claims, and having served nearly six years without once raising these issues with the respondent, the court declined to grant them. Service pay is excluded for NSSF-registered employees.

p. 2
03

Remedies for unfair termination

Holding

The court awarded one month's salary in lieu of notice and four months' salary as compensation, taking into account the claimant's six years of service and his own contribution in absenting himself without medical documentation.

Reasoning

Because the dismissal was on a ground the claimant was never accused of, the court exercised discretion to award notice pay and four months' compensation, tempering the award in view of the claimant's admission that he absented himself on medical grounds without producing any medical documents.

p. 3

Legal principles established

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  • A dismissal is unfair where the reason for dismissal differs from the accusations levelled against the employee over which he or she had been accorded an opportunity to defend himself or herself.
  • Before summarily dismissing an employee for failing to attend a disciplinary meeting, the employee must first be taken through a disciplinary hearing and be served with notice of the meeting.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 100,000
  2. 2.Four months' salary as compensation for unfair termination (Kshs 400,000)
  3. 3.Costs of the suit to the claimant
  4. 4.Award amounts (a) and (b) subject to taxes and statutory deductions

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (unfair termination claim under section 45 of the Employment Act)

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, "Johnson Bironga v Eldo-Rosta Construction Co. Ltd [2020] KEELRC 1912 (KLR)", Case Analysis (2020). Cause No. 21 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1912/eng@2020-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.