Wilson Oduor Ochieng v Kenyatta National Hospittal Board [2022] KEELRC 315 (KLR)
The bottom line
#Kenya's Employment Court ruled Kenyatta National Hospital unfairly fired a nurse for union activities, awarding him notice pay, salary arrears and three months' compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination was valid and fair
The Respondent failed to prove gross misconduct; the circular and reports emanated from the Nurses Association and the Respondent's selective discipline of the claimant alone evidenced discrimination and undermined the validity of the reason
The court found the circular bore the association's letterhead and emanated from its secretariat, and the Deloitte Reports were co-signed by other members who were not disciplined. The claimant's testimony that he had been exonerated of the earlier warnings was not dislodged. Accordingly no gross misconduct was proved and the reason was invalid.
Whether a fair procedure was followed
No - the interdiction letter did not mention the Deloitte Reports or previous allegations considered at termination, and new and extraneous issues were introduced at the hearing
The show-cause letter cited only the circular, yet the termination also relied on past conduct and the Deloitte Reports. The claimant was thus not clear what he was defending himself against, contrary to sections 41 and 45 of the Employment Act. The court held the procedure unfair for want of a credible reason and adequate notice of the charges.
Whether constitutional provisions were applicable
The dispute fell within the Employment Act and did not require invocation of constitutional provisions
Although the claimant pleaded violation of Article 47 and the Fair Administrative Action Act, the court held the issues adequately fell within the Employment Act 2007 and did not call for constitutional pronouncement, determining the claim on statutory unfair-termination grounds instead.
Legal principles established
#- Termination is unfair unless the employer proves both a valid and fair reason and fair procedure under section 45 of the Employment Act
- Fair procedure requires the employee to be clear on what he is defending himself against; new charges introduced at hearing violate section 41
- Communications issued by an office holder of a professional association are attributable to the association, not to the individual personally
Court orders
#- 1.Payment of one month salary in lieu of notice upon production of payslip
- 2.Payment of salary between 29th September 2016 and 6th February 2017 upon production of payslip
- 3.Three months' salary equivalent to last salary entitlement upon production of payslip
- 4.Costs of the suit to the claimant
- 5.Interest at court rates from date of award until full payment
- 6.Reinstatement declined due to passage of time
- 7.Claimant to work out the dues and present them to court on 4th May 2022 for verification
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claims arising from unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Oduor Ochieng v Kenyatta National Hospittal Board [2022] KEELRC 315 (KLR)", Case Analysis (2022). Cause No 41 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/315/eng@2022-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.