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ELRCPartially AllowedCause No. 613 of 2017· [2023] KEELRC 1954 (KLR)

Obondi v Kenya National Union of Nurses & another (Cause 1974 of 2017) [2023] KEELRC 1954 (KLR)

Employment and Labour Relations Court
26 July 2023
JGJacob Gakeri
2,883 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled COTU unfairly fired an employee after ignoring its own disciplinary committee's recommendation, awarding three months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 30th September 2013 as Deputy Industrial Relations Officer and later promoted to Industrial Relations Officer in Nairobi, was suspended on 21st September 2015 for absence from duty on Sunday 20th September 2015 and dismissed on 19th October 2015 despite a Disciplinary Committee finding her not culpable and recommending a written warning and reinstatement. She sought declarations that the dismissal was unfair, twelve months' salary as compensation, accrued leave pay and withheld salaries. The Respondent defended the termination as gross misconduct, alleging poor performance, absence from duty and lack of a valid sick-off. The court framed two issues: whether the termination was fair and entitlement to reliefs. It held that Sections 41, 43 and 45 of the Employment Act prescribe valid reason and fair procedure. On substance, the Respondent failed to prove the Sunday was a working day or to adduce credible evidence of poor performance, and so did not discharge its burden of proof. On procedure, although a hearing took place, the Respondent ignored the Committee's recommendation and the 2nd Respondent claimed sole discretion over termination, suggesting a predetermined outcome and reducing the hearing to a formality. The termination was declared unfair and unlawful. Accrued leave and withheld salary claims were abandoned on proof of payment, and compensation was limited to three months' gross salary given the short tenure and the Claimant's contribution to the termination, with interest from judgment. No costs were awarded as none were prayed for. Judgment entered on 26th July 2023, delivered virtually at Nairobi.

Key legal issues

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01

Whether the Respondent had a valid and fair reason to terminate the Claimant's employment

Holding

No - the Respondent failed to discharge its burden; the Claimant's absence on Sunday was not shown to be a working day, and allegations of poor performance lacked credible evidence

Reasoning

The Respondent relied on absence from office on Sunday 20th September 2015, non-availment of a sick-off, laxity and failure to follow instructions. The Claimant testified her work week was Monday to Friday; the Respondent adduced no documentary evidence to show she was required or had agreed to work on Sunday, and produced no credible evidence of poor performance, failing the burden under Sections 43(1) and 45(2).

p. 5
02

Whether the termination followed a fair procedure under Section 41

Holding

No - although a disciplinary hearing was held, the Respondent ignored the Committee's recommendation of a warning and reinstatement, indicating a predetermined decision and rendering the hearing a formality

Reasoning

The Disciplinary Committee found the Claimant remorseful and recommended a written warning and resumption of duty, yet the 2nd Respondent terminated her. The witness led no evidence of different minutes or reasons for overturning the recommendation, and his assertion that he alone decided her fate contradicted the Employment Act. The hearing was thus a sham compliance.

p. 6
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What compensation under Section 49(1)(c) is appropriate

Holding

Equivalent of three months' gross salary

Reasoning

In assessing quantum the court considered the short tenure of about two years, the Claimant's wish to remain in employment, her failure to appeal the termination despite the Committee's favourable recommendation, and her own contribution to the termination. These factors justified an award far below the twelve months' salary claimed.

p. 7

Legal principles established

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  • Fair termination requires both valid and fair reason and a fair procedure, per Sections 41, 43 and 45 of the Employment Act
  • An employer who appoints a disciplinary committee but ignores its findings gives the impression of a predetermined outcome, rendering the hearing a formality contrary to Section 41
  • The employer bears the burden of proving valid and fair reason for termination under Sections 43(1) and 45(2) of the Employment Act

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair and unlawful
  2. 2.Award of the equivalent of 3 months gross salary as compensation under Section 49(1)(c) of the Employment Act
  3. 3.Interest at court rates from date of judgment till payment in full
  4. 4.No costs awarded, the Claimant not having prayed for costs

Authorities

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Legislation

  • Employment ActSections 41, 43, 43(1), 44(4)(c) and (d), 45, 45(2), 49(1)(c)
  • Constitution of Kenya, 2010Articles 47, 50(1)
  • Fair Administrative Action ActSection 4
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d), 48

Cases cited (8)

  • Standard Group Ltd v Jenny Luesby
  • Fredrick Odhiambo v Kenya Safari Lodges & Hotels Ltd
    (2015) eKLR
  • Gladys Boss Shollei v Judicial Service Commission
    KESCS (KLR)
  • Kenya Revenue Authority v Maginga Salim Murgani
  • Naima Khamis v Oxford University Press (E.A) Ltd
    (2017) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act)

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, "Obondi v Kenya National Union of Nurses & another (Cause 1974 of 2017) [2023] KEELRC 1954 (KLR)", Case Analysis (2023). Cause No. 613 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1954/eng@2023-07-26

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