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ELRCAllowedNot stated in the excerpt

Everline Ashiono v Family Health International (FHI 360) [2021] KEELRC 284 (KLR)

Employment and Labour Relations Court
25 November 2021
1,838 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed an employer to file extra evidence in an unfair termination case, ruling that confidentiality concerns cannot block a defence.

What this practically means

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Executive summary

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This was an interlocutory application in an unfair termination claim before the Employment and Labour Relations Court at Nairobi. The respondent, whose disciplinary case against the claimant concerned alleged falsified data and a reconstructed second Daily Activity Register (DAR) at Nakuru Provincial General Hospital, applied under Rules 14, 15 and 17 of the ELRC (Procedure) Rules, 2016 for leave to file a further witness statement of Emmanuel Ouma, further bundles of documents including the second set of Daily Activity Registers ('DAR 1' to 'DAR 7'), and a witness summons to the CCC Data Clerk at Nakuru PGH to produce the original registers for April to June 2018. The respondent explained the delay by COVID-19 travel restrictions preventing staff travel to its Washington DC head office. The claimant did not object to the further witness statement or the summons as such, but objected that certain documents in the custody of Nakuru PGH contained patient-level HIV identifiers and were confidential, and contended the data clerk was not the proper custodian. The court, relying on Rule 14(10), section 47(5) of the Employment Act, 2007, and section 20(4) of the ELRC Act, 2011, allowed the application in full. It held that removing the records would impede the defence and the course of justice, that it could discern no identifiable patient information in the records, and that any confidentiality protection could be addressed at the hearing rather than used to restrict a defence. Costs were ordered to abide the outcome of the suit. Judgment delivered on 25th November, 2021 by M. Mbaru, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent should be granted leave to file a further statement of evidence of Emmanuel Ouma and further bundles of documents including the second set of Daily Activity Registers (DAR 1 to DAR 7)
  2. 2.Whether documents alleged to contain confidential patient-level HIV identifiers should be admitted, or excluded on privacy grounds
  3. 3.Whether a witness summons should issue to the CCC Data Clerk at Nakuru Provincial General Hospital to produce the original Daily Activity Registers for April to June 2018

Key legal issues

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01

Leave to file further documents after close of pleadings

Holding

The court allowed the respondent to file the further statement and documents, holding that exclusion would impede the defence and the course of justice, and that any confidentiality concerns should be addressed at the hearing rather than used to restrict a defence.

Reasoning

Rule 14(10) of the ELRC (Procedure) Rules, 2016 permits filing of supplementary bundles with leave after close of pleadings. Given the claimant's own case that the termination rested on data falsification allegations concerning the Daily Activity Registers, the work records become necessary. The court found no direct or indirect reference to any identifiable person in the records, and directed that any claim of confidentiality be dealt with at the hearing, not to restrict the defence.

p. 3
02

Burden of proof in unfair termination claims

Holding

Under section 47(5) of the Employment Act, 2007, the employee bears the burden of proving unfair termination or wrongful dismissal, while the employer must justify the grounds for termination.

Reasoning

The court invoked section 47(5) of the Employment Act, 2007, which places the burden of proving unfairness on the employee and the burden of justifying the grounds for termination on the employer. Because the disciplinary allegations against the claimant concerned the Daily Activity Registers and data submitted to reviewers, those work records were necessary for the respondent to justify the grounds of termination.

p. 2
03

Witness summons under section 20(4) of the ELRC Act

Holding

The court has power under section 20(4) of the Employment and Labour Relations Court Act, 2011 to require any person to attend, give evidence and produce relevant documents, and a witness summons was directed to issue to the CCC Data Clerk at Nakuru PGH.

Reasoning

The parties are allowed to call any witness, and the court may on its own motion or on application order any person to attend and produce relevant documents under section 20(4) of the ELRC Act, 2011. Since the original registers were said to be held at Nakuru Provincial General Hospital, a witness summons to the CCC Data Clerk to produce the original registers for April to June 2018 was granted.

p. 3

Legal principles established

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  • In a claim of unfair termination or wrongful dismissal, the burden of proving unfairness or wrongfulness lies with the employee, while the burden of justifying the grounds for termination rests on the employer.
  • All personal and confidential medical information should be protected against unauthorised disclosure.

Court orders

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  1. 1.The respondent shall file and serve a further statement of evidence of Emmanuel Ouma
  2. 2.The respondent shall file and serve the index to the respondent's Bundles of Documents dated 31st May, 2021, the Further Bundle of Documents dated 31st May, 2021, and the seven bundles containing the second set of Daily Activity Registers marked 'DAR 1' to 'DAR 7'
  3. 3.A witness summons shall issue to the CCC Data Clerk at Nakuru Provincial General Hospital to produce at the hearing the original Daily Activity Registers for CCCs for Nakuru Provincial Hospital for April to June, 2018
  4. 4.Costs shall abide the outcome of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Rule 14, 15 and 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; section 20(4) of the Employment and Labour Relations Court Act, 2011

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where the claimant requires the protection of any confidential information, such shall be addressed at the hearing and not for the purpose of restricting any defence.
p. 3confidentiality objections and fair hearing
I have gone through the records attached to the Affidavits of Odongo and Ouma and no direct or indirect reference to any identifiable person therefrom can be discerned.
p. 3absence of patient identifiers in the records
the court shall allow the respondent to produce these records as t remove them would impede on the response and the course of justice
p. 3admissibility of employment records
(1) The respondent shall file and serve a further statement of evidence of Emmanuel Ouma;
p. 3final orders
(3) A witness summons shall issue to the CCC Data Clerk at Nakuru Provincial General Hospital to produce at the hearing the original Daily Activity Registers for CCCs for Nakuru Provincial Hospital for April to June, 2018.
p. 3final orders
(4) Costs shall abide the outcome of the suit.
p. 3costs

Issues in the judgment

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minor

The application is described as dated 10th June, 2021 at the outset but the disposition refers to 'application dated 1st April, 2021', an internal inconsistency in the judgment.

minor

The claimant's replying affidavit is said to object to documents 'ELRC 2017(c), ELRC 2017(g) and ELCR 21(h)', the third citation appearing to be a typographical error (ELCR/ELRC).

minor

The disposition opens with a defective phrase 'is found without' which appears to omit the word 'merit'.

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, "Everline Ashiono v Family Health International (FHI 360) [2021] KEELRC 284 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/284/eng@2021-11-25

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