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ELRCDismissed· [2023] KEELRC 43 (KLR)

Gichobi v Oracle Technology Systems (Kenya) Limited (Employment and Labour Relations Cause 1661 of 2017) [2023] KEELRC 43 (KLR)

Employment and Labour Relations Court
19 January 2023
LNLinnet Ndolo
4,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers can discipline and dismiss employees over corruption suspicions without waiting for EACC investigations to conclude.

What this practically means

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Executive summary

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The Claimant, Charles Githinji Gichobi, employed by Oracle Technology Systems Limited from October 2005 until June 9, 2017, sued challenging the termination of his employment. The dispute arose after the Ethics and Anti-Corruption Commission (EACC) interviewed him over a Kshs 500,000 cheque from Njuguna & Partners Advocates, suspected to be a kickback relating to the sale of Oracle Audit Vault to the Kenya National Audit Office. The Claimant admitted receiving the cheque but said it was payment for construction materials supplied to a friend, and undertook to provide supporting documentation, which he never did. He also declined to avail his personal mobile phone for imaging, citing privacy. Oracle initiated internal investigations and disciplinary proceedings; the Claimant asked the Respondent to await the EACC outcome. The disciplinary panel found against him and his employment was terminated on grounds of loss of trust and confidence for failure to cooperate with investigations. His appeal to an internal panel, which he declined to attend over an impartiality objection, upheld the termination. He sought reinstatement or damages. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to remedies. Applying Section 43 of the Employment Act and the range of reasonable responses test, the Court held the Respondent was justified in demanding an explanation, that pending EACC investigations were no basis for withholding disciplinary action, and that the appeal panel was properly constituted. The termination was found substantively and procedurally fair, and the claim was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The termination was substantively and procedurally fair; the Claimant's failure to explain the flagged Kshs 500,000 payment justified loss of trust and confidence

Reasoning

The EACC flagged a Kshs 500,000 cheque to the Claimant as a suspected kickback. The employer was obligated to investigate. The Claimant refused to provide supporting documentation for his claim that the payment was for construction materials, impeding the investigation. There was no legal basis for requiring the employer to await the EACC outcome. The sanction fell within the band of reasonable responses.

p. 9
02

Whether the Appeal Panel was improperly constituted

Holding

The Appeal Panel was properly constituted and the Claimant had no valid reason to boycott the appeal hearing

Reasoning

The Claimant objected to Julia Windermuth on the ground of prior involvement at the EACC, but the Court found the panel members could not be said to have been biased (as printed) and that the refusal to attend the appeal was unjustified.

p. 9
03

Whether the Claimant was entitled to the remedies sought

Holding

No remedies were due as the termination was fair; the claim was dismissed with costs

Reasoning

Having found the termination both substantively and procedurally fair, the Court held that the claim for unlawful and unfair termination failed, and no reinstatement or damages could issue.

p. 9

Legal principles established

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  • An employer need not withhold disciplinary action pending criminal or EACC investigations; the two processes are separate and distinct
  • The range of reasonable responses test applies to an employer's decision to dismiss
  • An employee cannot, without justifiable cause, decline to participate in a disciplinary inquiry initiated by the employer

Court orders

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  1. 1.The claim for unlawful and unfair termination of employment was dismissed
  2. 2.The Claimant was ordered to pay costs to the Respondent

Authorities

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Legislation

  • Employment ActSection 43

Cases cited (5)

  • CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona
    [2015] eKLR
  • British Leyland UK Limited v Swift
    [1981] IRLR 91
  • Nampak Corrugated Wadeville v Khoza
    (JA 14/98) [1998] ZALAC 24
  • Mary Wagikuyu Komu v The Kenya Hospital Association t/a The Nairobi Hospital
    [2016] eKLR
  • Attorney General v Andrew Maina Githinji & another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; dispute over termination of employment)

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, "Gichobi v Oracle Technology Systems (Kenya) Limited (Employment and Labour Relations Cause 1661 of 2017) [2023] KEELRC 43 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/43/eng@2023-01-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.