Omondi v International Committee of the Red Cross (Cause 648 of 2019) [2023] KEELRC 2073 (KLR)
The bottom line
#Kenya's Employment Court upheld the Red Cross's dismissal of a driver for a traffic breach, ruling the reason and procedure were both fair.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was valid, lawful and justified
Yes - the claimant breached traffic rules and the employer's code of conduct, which he had signed, and admitted the breach seeking pardon
The claimant drove an official vehicle on the wrong side of the road, contrary to the respondent's code of conduct which he had signed, and by his letter of 7th June 2019 admitted the breach and asked for pardon. Driving on the wrong side amounts to careless driving, a valid reason for termination under section 45 of the Employment Act.
Whether fair procedure under section 41 was followed
Yes - the claimant received show cause letters, attended a disciplinary hearing accompanied by a fellow employee, and the minutes were signed
The claimant was issued show cause letters, invited to a disciplinary hearing which he attended with his witness Isaac Hamisi, admitted he understood safety was important and apologised, and both signed the minutes. This satisfied the explanation-and-accompaniment requirement of section 41(1) of the Employment Act.
Whether the GPS tracking evidence was inadmissible for want of a certificate under section 106B of the Evidence Act
The objection failed because the claimant admitted the breach in testimony and other documents reasonably supported the respondent's case
Although the GPS printout was filed without a certificate, the claimant himself testified that he breached the traffic rules and sought pardon, and the respondent tabled other documents which reasonably support its case. The evidential deficiency was therefore not fatal to the defence.
Whether the claimant is entitled to the reliefs sought, including terminal dues
The reliefs of compensation were refused as the termination was fair, but the court could not verify the terminal dues computation from the illegible statement and set a mention date
The court considered the respondent's statement dated 9th July 2019 but found it illegible and its workings unintelligible. It directed a mention for the respondent to explain the workings so the court can determine whether any moneys remain due to the claimant, notwithstanding the dismissal of the unfair termination claim.
Legal principles established
#- Expired warnings may not be used as progressive steps leading to dismissal but may be used as aggravating circumstances in deciding an appropriate sanction
- Three conditions must be satisfied for a fair termination: reasons given, the reasons must be fair, and the procedure followed must be fair
- Where an employee admits the misconduct and is heard with a witness of his choice, the employer discharges its burden under sections 41 and 45 of the Employment Act
Court orders
#- 1.The court found that the respondent gave the claimant a valid reason for termination and followed fair procedure; the claim of unfair termination was not upheld
- 2.The court directed that the case be mentioned on 4/10/2023 for the respondent to explain the terminal dues computation to enable the court determine if any moneys are due to the claimant
- 3.Each party to meet its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Section 45) over a claim of unfair termination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi v International Committee of the Red Cross (Cause 648 of 2019) [2023] KEELRC 2073 (KLR)", Case Analysis (2023). Cause No 648 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2073/eng@2023-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.