Chelagat v Kabarak University (Cause 28 of 2020) [2023] KEELRC 642 (KLR)
The bottom line
#Kabarak University won on the reason for dismissal but lost on procedure, paying over Kshs.2 million for denying a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a substantive (valid and fair) reason for dismissal
Yes - the employer genuinely and reasonably believed the Claimant had committed a criminal offence against the employer, amounting to gross misconduct under Section 44(4)(g).
Under Section 43 of the Employment Act the reason for termination is what the employer genuinely believed to exist at the time, a subjective test founded on reasonable evaluation. The Claimant had been arrested and charged with forgery and uttering false documents following DCI investigations and a decision by the DPP to charge, who was not party to any animus between the Claimant and the Dean of Students. The standard of proof in criminal proceedings is higher than that required under Section 43, so acquittal did not invalidate the employer's belief.
Whether the disciplinary process accorded the Claimant procedural fairness
No - the procedure fell short of the minimum standards of natural justice, rendering the dismissal wrongful, unfair and unlawful.
Article 47 of the Constitution and the Fair Administrative Action Act, read with Sections 41 and 45 of the Employment Act, require that an employee be informed of the charges with particulars and precision, be given documents and time to prepare a defence, and be heard. The Claimant twice requested particulars and evidence and was ignored; she was denied the opportunity to defend herself; her protest against a hostile panelist (Dr Alela) was ignored; and the minutes of the hearing were not produced. The dismissal on the same day as the hearing showed a predetermined mind.
Whether reinstatement was available as a remedy
No - the court cannot lawfully order reinstatement where more than three years have elapsed since dismissal under Section 12(3)(vii) of the Employment and Labour Relations Court Act.
Reinstatement may be ordered only within three years of dismissal, subject to conditions the court thinks fit. Three years lapsed in September 2020. The court noted the parties could still agree on reinstatement by consent even after expiry of the statutory period, but the court itself could not make such an order in its judgment.
What terminal dues and compensation the Claimant was entitled to
Three months' salary in lieu of notice, the unpaid balance of September 2017 salary, and the maximum 12 months' gross salary compensation under Section 49(1)(c) were awarded; August 2017 salary was refused as already paid.
Weighing the Section 49(4) factors, the court noted the Respondent failed to give due process, took no steps to resolve the matter after the Claimant's acquittal in 2020, and that the Claimant of over 11 years' service had been unable to find other employment due to the stigma of the dismissal. Given the acquittal, no misconduct could be attributed to her, justifying the maximum compensation of 12 months' gross salary.
Legal principles established
#- Acquittal in a criminal case does not of itself render an employer's dismissal based on the same allegations unlawful, because the employer need only show a genuine and reasonable belief in the misconduct under Section 43 of the Employment Act, the criminal standard being higher.
- An employer need not await the outcome of a criminal case before taking disciplinary action on the same facts.
- An employee must be supplied with particulars and evidence of the charges against her before a disciplinary hearing, failing which procedural fairness is breached.
- A dismissal letter issued on the same day as the disciplinary hearing evidences a predetermined mind and lack of due consideration.
Court orders
#- 1.A declaration that the dismissal of the Claimant by the Respondent was wrongful and unlawful
- 2.The Claimant is awarded a total of Kshs.2,132,736/= together with interest thereon from the date of judgment less statutory deductions, comprising balance of salary for September 2017 (Kshs.164,571/=), three months gross wage in lieu of notice (Kshs.393,633/=) and compensation for wrongful and unlawful dismissal equivalent to 12 months gross salary (Kshs.1,574,532/=)
- 3.All the other claims are denied
- 4.The Claimant is awarded costs of this cause
- 5.The Respondent is ordered to issue and deliver to the Claimant a certificate of service within 30 days of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (including Section 12(3)(vii) on reinstatement)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chelagat v Kabarak University (Cause 28 of 2020) [2023] KEELRC 642 (KLR)", Case Analysis (2023). Statement of Claim dated 3rd August, 2020 (Cause filed 6th August, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/642/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.