Phanice Naliaka v National Cereals and Produce Board [2022] KEELRC 846 (KLR)
The bottom line
#Kenya's Employment Court ruled a four-year disciplinary delay makes even a justified dismissal unfair, entitling the employee to notice pay, compensation and pension.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was substantively justified
Yes - the Claimant failed to report fertilizer shortages and loss of Kshs. 6,947,373/- under her supervision
The court applied sections 43, 45(2) and 47(5) of the Employment Act, placing the burden on the employer to prove reasons. The Claimant admitted supervisory responsibility, admitted failing to report the shortages until after the audit, and admitted knowledge of a customer paying cash contrary to procedure. The acquittal in the criminal case did not bar a civil finding given the lower standard of proof in civil matters.
Whether the dismissal was procedurally fair
No - the disciplinary process took over four years, breaching section 4(1) of the Fair Administrative Actions Act and section 41 of the Employment Act
The first show cause letter was issued on 23 September 2015, the second on 22 November 2016, the hearing on 30 November 2016, the committee's deliberation on 6 December 2017 and the final decision on 11 January 2018. The court held this inordinate process violated the right to expeditious, efficient and procedurally fair administrative action, rendering the termination unfair despite substantive justification.
Entitlement to reliefs
Partially allowed - notice pay, one month's compensation and provident fund payment awarded; service pay, acting allowance, overtime and unpaid wages dismissed
The court awarded notice pay under the Respondent's Terms and Conditions of Service Policy clause 35.1 and ordered payment of both employee and employer provident fund contributions under the Retirement Benefits Act. Compensation was assessed under section 49(4) factors, reduced to one month because the Claimant largely contributed to her dismissal and the Respondent is a public institution that suffered the loss.
Legal principles established
#- An employer bears the legal and evidential burden of proving valid and fair reasons for dismissal under sections 43, 45(2) and 47(5) of the Employment Act
- A disciplinary process that takes close to four years is inefficient, unreasonable, unlawful and unfair, rendering an otherwise justified dismissal procedurally unfair
- An employee is entitled to retirement benefits irrespective of the reasons for separation
Court orders
#- 1.3 months salary in lieu of notice at Kshs.213,780/-
- 2.One Month's Salary as Compensation for wrongful and unfair termination at Kshs.71,260/-
- 3.Pension payable from the Respondent's staff Provident Fund in accordance with the RBA
- 4.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Guerra v Urysia Limited (Cause 649 of 2017) [2024] KEELRC 488 (KLR)[2024] KEELRC 488 (KLR)23 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Phanice Naliaka v National Cereals and Produce Board [2022] KEELRC 846 (KLR)", Case Analysis (2022). ELRC Cause (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/846/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.