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ELRCDismissedNot stated in judgment· [2023] KEELRC 2380 (KLR)

Mayeku v University of Embu (Cause 504 of 2019) [2023] KEELRC 2380 (KLR)

Employment and Labour Relations Court
28 September 2023
5,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a university lecturer's dismissal, confirming employers win unfair termination cases when they follow proper disciplinary procedure.

What this practically means

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Executive summary

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The claimant, a Lecturer in the Department of Physical Science at the University of Embu and chairperson of the UASU University of Embu Chapter, sued the respondent university alleging unfair termination of his employment on 9 May 2019. He claimed the Vice Chancellor orchestrated his termination after he declined invitations to private evening meetings purportedly intended to resolve domestic issues with his wife, and that the disciplinary process of 2 May 2019 was rushed, one-sided, without notice of charges, union representation or witnesses, and that the appeal board duplicated the disciplinary panel. He sought reinstatement or, alternatively, 12 months' compensation, leave pay, and Kshs. 5 million in damages. The respondent maintained the termination followed due process, founded on negligence of duty: failure to teach assigned units on several dates in 2017-2019, failure to invigilate supplementary examinations, delegation of examination scripts and marks to a masters student without approval, and anomalies in attendance submissions. The respondent called four witnesses including the DVCs and the VC. The court framed four issues and found the claimant was given show cause notices, responded (largely evasively), was invited to and attended a disciplinary hearing, and was informed of the reasons for termination. The proven grounds amounted to gross negligence, abdication of duty and insubordination under sections 43, 44(3) and 44(4)(c) of the Employment Act, 2007. Notably, the defamatory-accusations ground did not feature in the termination. Reinstatement was unavailable where termination was for good cause. The claim was dismissed in its entirety with costs to the respondent, and the file was returned to the ELRC Nairobi Registry.

Key legal issues

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01

Whether the termination of the claimant's employment was unfair

Holding

The termination was lawful, both substantively and procedurally; the respondent complied with sections 43, 44 and 41 of the Employment Act

Reasoning

The claimant was notified of the allegations through show cause notices dated 12 February and 6 March 2019, responded to them, and was invited to and attended a disciplinary hearing where he made representations. The grounds found against him - failure to teach assigned units, failure to invigilate examinations, delegation of examination scripts to a student without approval, and failure to submit the original CAT II form - were proven and amounted to gross negligence and abdication of duty justifying dismissal under sections 44(3) and 44(4)(c). The defamatory-accusations ground did not feature in the termination.

p. 10
02

Whether the claimant's admission of delegating duties without approval amounted to breach

Holding

Admission of delegating his duties to Dr Eric Wangila and to a masters student without head of department approval was a fundamental breach

Reasoning

The claimant admitted in evidence that he asked a colleague to invigilate and administer examinations on his behalf and that he handed marked examination scripts and marks to a masters student for delivery to the examinations coordinator. There was no evidence that the head of department or the employer approved such delegation. The court held such allocation of core duties without authorisation was direct abdication of duty and insubordination, a fundamental breach of the employment relationship.

p. 9
03

Whether reinstatement could issue

Holding

Reinstatement was not available because the termination was for good cause and lawful

Reasoning

Since the court found the disciplinary process met the threshold of due process and the reasons for termination aligned with the claimant's job description, the equitable remedy of reinstatement could not issue. The respondent even terminated rather than summarily dismissing the claimant, paying one month's notice, which the court characterised as generous.

p. 10

Legal principles established

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  • Failure to attend work as directed and abdication of duty constitute gross misconduct justifying summary dismissal under sections 44(3) and 44(4)(c) of the Employment Act
  • Delegating core duties to a student or colleague without approval of the head of department constitutes gross negligence and insubordination

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Costs to the respondent
  3. 3.The file shall be returned to ELRC Nairobi Registry

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(c)
  • Employment Act, 2007Section 44(3)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41
  • Universities ActNot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007; 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, "Mayeku v University of Embu (Cause 504 of 2019) [2023] KEELRC 2380 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2380/eng@2023-09-28

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