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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated August 27, 2022, filed August 29, 2022)· [2023] KEELRC 1073 (KLR)

Ochieng v Great Lakes University of Kisumu(GLUK) (Cause E036 of 2022) [2023] KEELRC 1073 (KLR)

Employment and Labour Relations Court
4 May 2023
4,185 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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A Kenyan court ruled Maseno University unfairly dismissed its Chief Accountant because she wasn't told she could bring a representative to her disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, formerly Chief Accountant of the Respondent university, was summarily dismissed by letter dated October 27, 2019 after a show cause letter and disciplinary hearing concerning alleged diversion of university funds. She challenged the dismissal as procedurally and substantively unfair, seeking compensation, terminal dues of Kshs 2,153,036, a certificate of service, costs and interest. The Respondent denied the claim, asserting the dismissal was for gross misconduct, that the Claimant was familiar with disciplinary procedures, and that some dues were time barred under Section 90 of the Employment Act. The court framed three issues: whether the dismissal was wrongful, whether remedies were deserved, and costs. It held that procedural fairness under Section 41 of the Employment Act was breached because the Claimant was not informed of her right to be accompanied by a representative, and that familiarity with disciplinary procedure did not excuse this. Substantively, the dismissal letter relied on grounds (double chequing of air tickets and refusal to obey lawful orders) that were not in the show cause letter, and the Claimant was not a signatory to the university accounts, rendering the dismissal substantively unfair. The court awarded a declaration of unfair dismissal, one month's salary in lieu of notice (Kshs 94,200), seven months' salary compensation (Kshs 659,400) in view of her ten years' service but failure to mitigate, and ordered remittance of pension deductions with the employer's portion to the scheme under the Retirement Benefit Act. The unpaid salaries claim was dismissed. Costs and interest until payment in full were awarded to the Claimant.

Key legal issues

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01

Procedural fairness of the dismissal under Section 41 of the Employment Act

Holding

The dismissal failed the procedural fairness test because the Claimant was not informed of her right to be accompanied by a representative and was not heard on the grounds ultimately relied upon

Reasoning

Section 41 entitles an employee to be accompanied by another employee or shop floor union representative at a disciplinary hearing. It was not disputed that the Claimant was not accorded this opportunity. The Respondent's argument that the Claimant, as a management employee familiar with disciplinary procedures, did not need to be informed of the right was rejected. She was the one on trial, and the law required she be informed of the right regardless.

p. 6
02

Substantive fairness of the dismissal under Sections 43 and 45

Holding

The dismissal was substantively unfair because the reasons in the dismissal letter (double chequing of air tickets, refusal to obey lawful orders) were not the grounds in the show cause letter, and the Claimant was not a signatory to the university accounts

Reasoning

The show cause letter, suspension letter and hearing invitation all related to diversion of university funds in three instances. The dismissal letter instead cited refusal to obey lawful orders and defrauding the university through double cheques for air tickets. RW1 admitted the show cause letter did not cover the air tickets charge. The Claimant was not a signatory to the Respondent's accounts. The employer therefore failed to establish valid reasons known to the employee before dismissal.

p. 7
03

Entitlement to compensation under Sections 49 and 50 of the Employment Act

Holding

The Claimant was awarded seven months' salary as compensation, taking into account her over ten years of service, the unproved grounds of dismissal, and her failure to mitigate

Reasoning

Unfair dismissal entitles the Claimant to compensation under Sections 49 and 50. The court considered the Section 49(4) factors: she served over ten years, the grounds of dismissal were not proved, though a prior warning letter existed. However, she did not show effort to mitigate her losses, so the court awarded seven months' salary rather than the twelve months sought.

p. 8
04

Claim for unremitted pension contributions

Holding

The Claimant was entitled to remittance of all pension deductions plus the employer's portion to the pension scheme, to be released by the trustees under the Retirement Benefit Act

Reasoning

The Respondent argued the Claimant, as Chief Accountant in charge of remittances, could not claim for her own omissions. The court rejected this: what an office holder remits is the employer's money, not their own, and non-remittance was only because the employer did not avail the funds. Deductions proved by pay slips. Failure to remit is an unfair labour practice regulated by the Retirement Benefit Act.

p. 8
05

Claim for one month's salary in lieu of notice

Holding

Awarded, since the dismissal was unfair and the Section 44(1) exception for summary dismissal did not apply

Reasoning

Section 36 requires payment of one month's salary in lieu of notice where a contract is terminated without notice. The Respondent's only defence was gross misconduct following summary dismissal. Having found the dismissal unfair, the exception under Section 44(1) did not apply, and one month's salary in lieu of notice was awarded.

p. 8

Legal principles established

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  • An employer must inform an employee of the right to be accompanied by a representative at a disciplinary hearing whether or not the employee is familiar with disciplinary procedures
  • An employee may only be dismissed on grounds that were brought to their attention before the disciplinary hearing
  • Failure to remit pension deductions from an employee's salary is an unfair labour practice

Court orders

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  1. 1.A declaration that the Claimant was unfairly dismissed
  2. 2.Payment of one month's salary in lieu of dismissal notice at Kshs 94,200/-
  3. 3.Seven months' salary as compensation for unfair termination at Kshs 659,400/-
  4. 4.That the Claimant's pension deductions be remitted to her pension scheme, and she be paid by the scheme trustees in accordance with the RBA Act
  5. 5.Costs of the suit and interest thereon until payment in full

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSections 43, 45 and 47(5)
  • Employment ActSections 49 and 50
  • Employment ActSection 36
  • Employment ActSection 44(1)
  • Employment ActSection 90
  • Employment ActSection 51
  • Constitution of KenyaArticle 47(1)
  • Retirement Benefit ActNot specified (and Regulations made thereunder)
  • Human Resource Manual (Respondent)Clause 22.4

Cases cited (9)

  • Gilbert Mariera Makori v Equity Bank Limited
    [2016] eKLR
  • James Ondima Kabesa v Trojan International Limited
    [2017] eKLR
  • Samuel Kamau Muhindi v Ivesco Assurance Company Limited
    [2014] eKLR
  • Vincent Abuya Obunga v Mast Rental Services Limited
    [2019] eKLR
  • David Mbugua v Registered Trustees of the Presbyterian Church of East Africa
    ELRC Cause No 1518 of 2011
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
  • Alphonce Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 36, 41, 43, 45, 47(5), 49, 50, 90) and Article 47(1) of the Constitution

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, "Ochieng v Great Lakes University of Kisumu(GLUK) (Cause E036 of 2022) [2023] KEELRC 1073 (KLR)", Case Analysis (2023). Not stated in judgment (Memorandum of Claim dated August 27, 2022, filed August 29, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1073/eng@2023-05-04

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