Chang'awa v Gertrude’s Children Hospital (Cause 2203 of 2016) [2022] KEELRC 1310 (KLR)
The bottom line
#A Kenyan court awarded a hospital pharmacist over Kshs.4 million because, even though his misconduct was proven, his employer skipped the fair hearing the law requires.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to dismiss the Claimant
Yes — the Respondent proved on a balance of probability that the Claimant was negligent in receiving drugs without confirming with the system or physical LPO.
The Claimant admitted receiving invoices CNV08975 and CNV08962 without confirming details with the physical LPO or system, and the drugs were not stocked at the hospital. His explanation that a colleague, Thaddeus Onindi, had ordered the drugs was unsubstantiated as Onindi was neither called as a witness nor did the Claimant obtain a statement from him. Receipt of goods without confirmation constituted negligence under paragraph 24(d) of the CBA.
Whether the termination procedure was fair under Section 41 of the Employment Act
No — the Respondent failed to demonstrate full compliance with the mandatory procedure under Section 41.
The disciplinary hearing minutes made no mention of the Claimant or why he did not attend, no reference to the charges being read in the presence of his chosen representative (Mr. Patrick Mwaniki), who did not sign the minutes, and no record of the representative's representations or the committee's deliberations. The minutes appeared to be a report rather than an itemised discussion, and the decision to dismiss appeared predetermined.
Entitlement to house allowance, notice pay, outstanding salary and compensation
House allowance of 15% of basic salary for 24 years, four months' notice pay per the CBA, outstanding salary for one month and 15 days, and compensation equivalent to two months' salary were awarded.
Section 31 of the Employment Act places the duty of housing on the employer; the payslip showed no house allowance entry and the Respondent tendered no evidence of salary. The CBA provided four months' notice for employees with ten or more years' service. Salary was unpaid from suspension to termination. Compensation was reduced to two months because the Claimant substantially contributed to the dismissal and failed to prosecute his appeal.
Legal principles established
#- For a termination of employment to pass the fairness test, it must be founded on a valid and fair reason and the procedure must be fair.
- Section 41 of the Employment Act sets out a mandatory process of notification and hearing before termination on grounds of misconduct.
- Where there is no credible evidence of salary, 15% of basic salary is a reasonable house allowance.
Court orders
#- 1.House allowance of Kshs.3,579,897.60
- 2.Notice pay of Kshs.331,472.00
- 3.Outstanding salary of Kshs.142,947.60
- 4.Equivalent of two (2) months' salary as compensation Kshs.190,596.40 (total award Kshs.4,244,913.60)
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates till payment in full
- 7.Certificate of service to issue within 30 days
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49(1)(c) applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chang'awa v Gertrude’s Children Hospital (Cause 2203 of 2016) [2022] KEELRC 1310 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1310/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.