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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 1816 (KLR)

Kenya National Union of Nurses v Jaramogi Oginga Odinga University of Science and Technology [2021] KEELRC 1816 (KLR)

Employment and Labour Relations Court
28 April 2021
1,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a driver employed by the Respondent university in 2011, was suspended in June 2016 over allegations of negligence, given a show-cause opportunity, invited to a disciplinary hearing with notice of three charges and the right to be accompanied, and was summarily dismissed in August 2016. He sued for unfair termination and breach of contract. On procedural fairness, the Court held the Respondent substantially complied with section 41 of the Employment Act, 2007: allegations were communicated, a written response was invited and given, the hearing was properly notified (including to his trade union), the right to be accompanied and to present witnesses was honoured, and relevant documents were made available. The contention that the Committee was improperly constituted because the Vice-Chancellor chaired it failed, as the cited Statute provision concerned the students' disciplinary committee and the applicable Schedule VI clause permitted the appointing authority to chair. On substantive fairness, an audit showed the Claimant falsified work ticket entries to inflate a daily subsistence allowance; his typographical-error explanation was rejected as insincere, and the dismissal was found fair, defeating compensation and notice pay. On breach of contract, overtime of Kshs 285,895/- was allowed because the Respondent produced no work hour records (section 10(3)); accrued leave was awarded at the Respondent's computation of Kshs 14,421/-; uniform refund of Kshs 36,000/- and soap allowance of Kshs 6,000/- were admitted. A certificate of service was ordered within 21 days. Each party having partially succeeded, each party bore its own costs. Delivered on 28 April 2021 by Radido Stephen, Judge.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

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.

Reasoning

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.

p. 2
02

Substantive fairness of the summary dismissal

Holding

Valid and fair reasons existed: the Claimant falsified work ticket entries to claim a higher daily subsistence allowance.

Reasoning

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.

p. 2
03

Overtime claim

Holding

Allowed at Kshs 285,895/- because the employer produced no work hour records.

Reasoning

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.

p. 3
04

Accrued leave, uniform and soap allowance, certificate of service

Holding

Leave awarded per the Respondent's computation; uniform and soap allowances admitted; certificate of service to issue within 21 days.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Declaration that the summary dismissal of the Claimant was fair (dismissal upheld)
  2. 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. 3.Respondent to issue a certificate of service within 21 days
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 10(3)
  • Labour Relations Act, 2007dispute resolution avenues
  • Respondent's Statute (Jaramogi Oginga Odinga University of Science and Technology Statute)Article 7.3; Schedule VI
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and breach of contract claims under the Employment Act, 2007

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, "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.