Mbaka v Athi River Shalom Hospital (Cause 216 of 2018) [2023] KEELRC 1868 (KLR)

The court noted that although an investigation was alleged, its report was never produced in evidence. The Claimant was absent from the list of employees charged over the theft. The assertion that the Claimant was a poor performer was unsupported by performance metrics, and his retention for over 10 years belied the claim. The employer therefore failed to discharge its burden under sections 43 and 45 of the Employment Act.

Relying on Walter Ogal Anuro v Teachers Service Commission, the court held that the employer must ensure both procedural fairness and substantive justice when disciplining an employee. Since the Respondent did not adhere to these requirements under sections 41, 43 and 45, the dismissal was ipso facto unfair and unlawful, entitling the Claimant to compensation.

The employer gave no breakdown on the payslip and the contract did not indicate a gross consolidated salary. Failure to itemise leaves the employer open to the house allowance claim. However, because the non-payment was a continuing wrong and the Claimant never sought it earlier, the claim was confined to the last year of service, awarded at 15% of the basic salary.

The two warning letters from 2012 and 2014 had expired by the time of the dismissal. No performance metrics were availed, and the Claimant had served over ten years and was retained rather than dismissed. The court characterised this as a case of an employer alleging poor performance merely to justify a dismissal made without proper cause.