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ELRCPartially AllowedELR No. 20 of 2017 (Formerly NKR ELRC 172/14)· [2020] KEELRC 1920 (KLR)

Patrick Handa v Rai Plywoods (K) Limited [2020] KEELRC 1920 (KLR)

Employment and Labour Relations Court (High Court of Kenya) at Eldoret
30 October 2020
1,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employer who suspends an employee and never holds a proper disciplinary hearing risks paying full salary for the entire suspension period plus compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent in March 2002 as an electrician, was in February 2011 suspended indefinitely over allegations of embezzlement of approximately Kshs. 79 million from Rai Ply SACCO, a separate entity for the respondent's workers. He was arrested and charged before the Eldoret Magistrates' Court with conspiracy to commit felony but was acquitted on 3rd February 2012 for lack of evidence. Through counsel, he wrote on 26th March 2012 demanding revocation of his interdiction, reinstatement and payment of dues; the respondent admitted receiving the letter but never replied. The respondent contended it had summoned the claimant about five times by registered post to show cause and attend a disciplinary hearing, but the claimant never responded, and no dismissal letter was ever issued. The respondent's witness, the HR Manager, joined the company after the claimant left and relied on personal records. The court held that although valid reasons for termination may have existed, the termination violated the procedure set out in the Employment Act because the claimant was never given an opportunity to be heard. Acquittal in the criminal trial did not preclude a disciplinary hearing, the standard of proof being lower, but none was in fact held. Since a suspended employee remains an employee absent termination, the court fixed termination at 26th March 2012 and awarded salary for the suspension period (Kshs. 248,079), one month's notice pay (Kshs. 19,083) and eight months' salary as compensation for unfair termination (Kshs. 419,826), with costs to the claimant, the awards subject to taxes and statutory deductions.

Key legal issues

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01

Procedural fairness in termination

Holding

Although there may have been valid reasons to terminate the claimant's services, the termination was procedurally flawed because the claimant was never given an opportunity to be heard before termination.

Reasoning

The claimant was suspended indefinitely pending investigations and later acquitted of criminal charges. The respondent alleged it sent about five notices by registered post to a postal address supplied by the claimant, but the returned unclaimed mail was never exhibited, and the respondent never replied to the claimant's demand letter after acquittal. The court found a breakdown in communication and held that the disciplinary hearing never took place, breaching the procedural requirements of the Employment Act.

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02

Status of a suspended employee and date of termination

Holding

A suspended employee remains an employee until services are terminated; as no termination letter was issued, the court reckoned the date of termination as 26th March 2012, when the claimant's advocate issued a demand letter that went unanswered.

Reasoning

The claimant was only issued with a suspension letter, never a termination or dismissal letter. The respondent conceded no dismissal letter was issued. The court therefore fixed the effective date of termination at the date of the unanswered demand letter, and computed salary for the suspension period up to that date, together with notice pay and compensation.

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Effect of criminal acquittal on disciplinary action

Holding

Acquittal in a criminal trial does not bar an employer from conducting a disciplinary hearing on the same allegations, since the standard of proof in disciplinary proceedings is lower than the criminal standard.

Reasoning

The claimant was charged with conspiracy to commit felony and acquitted for lack of evidence. The court held that the failure of the criminal case did not preclude the employer from using similar evidence internally, because the disciplinary standard of proof is not as high. However, the respondent's failure to actually hold the hearing, and its failure to respond to the demand letter, undermined its case that it had genuinely sought to hear the claimant.

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Legal principles established

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  • A suspended employee remains an employee until services are lawfully terminated; absent a termination letter, termination may be reckoned from the date of an unanswered demand letter.
  • Even where criminal charges end in acquittal, an employer may still hold a disciplinary hearing on the same facts, the standard of proof in a disciplinary hearing being lower than in a criminal prosecution.
  • Termination must follow fair procedure, including giving the employee an opportunity to be heard.

Court orders

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  1. 1.Award of Kshs. 248,079 being salary for the period of suspension (15/2/2011 to 26/3/2012)
  2. 2.Award of Kshs. 19,083 being one month's salary in lieu of notice
  3. 3.Award of Kshs. 419,826 being eight months' salary as compensation for unfair termination
  4. 4.Costs of the suit awarded to the claimant
  5. 5.Awards in items (i), (ii) and (iii) made subject to taxes and statutory deductions
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Patrick Handa v Rai Plywoods (K) Limited [2020] KEELRC 1920 (KLR)", Case Analysis (2020). ELR No. 20 of 2017 (Formerly NKR ELRC 172/14). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1920/eng@2020-10-30

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