Kenya National Union of Nurses v Jaramogi Oginga Odinga University of Science and Technology [2021] KEELRC 1816 (KLR)
The bottom line
#A Kenyan court upheld a university driver's dismissal for falsified records but ordered the employer to pay overtime it could not document.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the disciplinary process
The process complied with section 41 of the Employment Act: allegations were communicated, the Claimant responded in writing, was invited to a hearing with right to be accompanied, notified of the charges, allowed to present witnesses and furnished with documents.
The suspension letter of 27 June 2016 set out the allegations and invited a written response. Two hearing invitations were copied to the trade union and disclosed the right to be accompanied and the three charges. Minutes showed the Committee reminded the Claimant of his right to present witnesses, and a letter of 8 August 2016 drew his attention to relevant documents. The claim that co-chairing by the Vice-Chancellor breached the Statute was misplaced because the cited provision concerned the Students Disciplinary Committee, and nothing barred the Vice-Chancellor from chairing as appointing authority.
Substantive fairness of the summary dismissal
Valid and fair reasons existed: the Claimant falsified work ticket entries to claim a higher daily subsistence allowance.
An audit established that work ticket no. 0558 showed a return on 15 April 2016 whereas the Claimant actually returned on 14 April 2016, as corroborated by students, a colleague and a security guard's register entry. The Claimant's explanation of a typographical error was rejected as insincere because the same entries were used to claim a full day rather than half day subsistence allowance, showing the entries were deliberate.
Overtime claim
Allowed at Kshs 285,895/- because the employer produced no work hour records.
The Claimant produced a memo of 7 April 2015 claiming overtime accrued over 318 days. Under section 10(3) of the Employment Act, 2007, where the employer fails to maintain or produce records, the burden shifts and the employee's evidence is accepted. The Respondent produced no work hour records, so the claim was allowed.
Accrued leave, uniform and soap allowance, certificate of service
Leave awarded per the Respondent's computation; uniform and soap allowances admitted; certificate of service to issue within 21 days.
The employer computed 27 accrued leave days at Kshs 14,421/-, which the Court accepted given the Claimant disclosed no formula. The uniform and soap allowance heads were admitted. A certificate of service is a statutory entitlement, and the Respondent's witness confirmed terminal benefits would be paid.
Legal principles established
#- Employers must substantially comply with section 41 of the Employment Act procedural fairness requirements: notification of allegations, written response, hearing with right to be accompanied and to present witnesses
- Where an employer fails to produce work hour records, the employee's claim on overtime may be allowed under section 10(3) of the Employment Act, 2007
- Where the employee does not disclose a computation formula, the court may accept the employer's computation of accrued leave
Court orders
#- 1.Declaration that the summary dismissal of the Claimant was fair (dismissal upheld)
- 2.Award to the Claimant for breach of contract of Kshs 342,316/- comprising overtime Kshs 285,895/-, uniform refund Kshs 36,000/-, soap allowance Kshs 6,000/- and accrued leave Kshs 14,421/-
- 3.Respondent to issue a certificate of service within 21 days
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and breach of contract claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Jaramogi Oginga Odinga University of Science and Technology [2021] KEELRC 1816 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1816/eng@2021-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.