Mohamed Ali Wafula v Phoenix of East Africa Assurance Company Limited [2022] KEELRC 301 (KLR)
The bottom line
#A Kenyan court ruled that an employee who skipped his disciplinary hearing lost his right to claim unfair termination, but still got his unpaid salary and leave dues.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The termination was procedurally fair because the claimant was invited to disciplinary hearings but deliberately failed to attend, waiving his right to be heard
The court found the claimant was issued a show cause/suspension letter and a letter inviting him to a disciplinary committee on 24th May 2013. Cross-examination established that he collected the invitation letters while on bail prosecuting the criminal case but chose not to attend. Relying on the waiver principle, the court held he squandered his opportunity to be heard, leaving the respondent with no option but to terminate.
Substantive justification for the termination
Despite questions over whether the claimant handled cash, the termination was substantively justified
The respondent's audit allegedly uncovered a loss of Kshs 100,627 in unbanked premiums. The claimant denied handling cash, saying the branch manager issued receipts, but the court held that even if his denial were true, he was still expected to appear before the disciplinary committee and exonerate himself. His absence meant the respondent could act on the available grounds.
Entitlement to terminal dues
The claimant was entitled only to his April 2013 salary and unpaid leave, not notice pay or compensation
The respondent admitted the April 2013 salary was unpaid, and unpaid leave of Kshs 40,646.76 was awarded as prayed. Because the dismissal was summary and occasioned by the claimant's own failure to attend the disciplinary hearing, no notice pay or the 12 months' compensation sought was payable. The awards were subjected to statutory deductions.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- An employee who squanders the opportunity to be heard at a disciplinary hearing cannot later claim procedural unfairness
- The right to be heard can be waived by conduct
Court orders
#- 1.Payment of the claimant's April 2013 salary of Kshs 55,427.40
- 2.Payment of unpaid leave of Kshs 40,646.76
- 3.Total award of Kshs 90,074 less statutory deductions
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (Employment Act dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Ali Wafula v Phoenix of East Africa Assurance Company Limited [2022] KEELRC 301 (KLR)", Case Analysis (2022). Cause No. 68 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/301/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.