Omutiti v Riara Group of Schools (Employment and Labour Relations Petition E081 of 2021) [2023] KEELRC 122 (KLR)
The bottom line
#A Kenyan court ruled that even when an employee commits serious misconduct, an employer who skips a fair hearing must still pay compensation for unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition raised a constitutional question
The Petition did not raise a constitutional question; it was an ordinary employment claim dressed as a constitutional petition and was dealt with as an ordinary cause.
The court applied the constitutional avoidance doctrine. Although Article 41 elevated employment rights, Parliament had enacted an elaborate statutory regime in the Employment Act. The Petition failed the Anarita Karimi Njeru standard as it did not plead with precision the rights violated nor link the facts to the constitutional provisions cited. The court relied on Okutoyi, Obando, Harrikissoon, and Sumayya Athmani Hassan to decline jurisdiction over the matter as a constitutional issue and proceeded under the Employment Act.
Whether the Respondent had valid reason to terminate
The Respondent had a valid reason - credible evidence pointed to the Petitioner's circulation of pornographic materials in breach of the e-learning policy.
The Petitioner did not deny circulation of offensive images from his email account. His hacking defence was discredited: the account was unsecured rather than hacked; further images circulated after he changed his password; and his police report was made only after termination. The court found the Respondent genuinely believed the Petitioner circulated the material, satisfying section 43 of the Employment Act on substantive validity of the reason for termination.
Whether due process was followed in the termination
The Respondent failed to demonstrate due process; the termination was procedurally unfair.
Sections 41, 43 and 45 of the Employment Act render due process mandatory however grave the misconduct. The burden lay on the employer to prove a fair procedure. The Petitioner asserted he was denied a chance to present his defence and call witnesses. The Respondent produced no minutes of the disciplinary session, relying only on the dismissal letter, which did not address the grant or denial of an opportunity to be heard. In the absence of that evidence, the court could not conclude that due process was accorded.
What remedies the parties were entitled to
Compensation limited to two months' salary (Kshs 110,000/=) plus costs assessed as in an ordinary claim.
Under section 49 of the Employment Act, the court considered the employee's conduct contributing to termination. Although the termination was procedurally flawed, the evidence pointed to the Petitioner's culpability in circulating obscene materials within a learning institution. Balancing the obligation to remedy procedural wrongs against not rewarding misconduct, the court limited compensation to the equivalent of two months' salary and awarded costs assessed as in an ordinary claim.
Legal principles established
#- Where legislation (the Employment Act) has been enacted to give effect to a constitutional right (Article 41), a litigant may not found a cause of action directly on the Constitution without challenging the adequacy of that legislation - the constitutional avoidance principle.
- An employer bears the burden of proving both valid reason and fair procedure under sections 43 and 45 of the Employment Act; regardless of the gravity of misconduct, failure to accord due process renders termination unfair.
- Where an employee contests the fairness of a disciplinary session, the employer must independently and objectively verify the process, conventionally by producing minutes; withholding such evidence means the court cannot find due process was observed.
Court orders
#- 1.The Respondent’s termination of the Petitioner’s contract of service is faulted on account of failure to demonstrate that due process was followed.
- 2.The Petitioner is awarded the sum of Kshs 110,000/= being an amount equivalent to his salary for two months as compensation for wrongful termination.
- 3.The Petitioner is granted costs of the Petition, to be assessed as costs arising in an ordinary claim.
- Jurisdiction invoked
- Constitution of Kenya, 2010, Article 41 read with the Employment Act; Petition filed in the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omutiti v Riara Group of Schools (Employment and Labour Relations Petition E081 of 2021) [2023] KEELRC 122 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/122/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.