Tonio v Kenya Power & Lighting Co Ltd (Cause 1359 of 2018) [2023] KEELRC 2544 (KLR)

Employment and Labour Relations Court

19 October 2023

LNLINNET NDOLO

1,863 words in judgment

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The bottom line

What this practically means

Executive summary

The Claimant, a Technician Engineer later 4th Assistant Engineer at the Respondent, was dismissed by letter dated 28th May 2018 on the single ground that his name appeared on a list of key employees of a prequalified labour and transport firm, Beamland Agencies Limited. Following an audit report alleging conflict of interest, he was issued a show cause letter, denied the charge, and appeared before the Staff Disciplinary Committee on 15th May 2018. The Committee found no link between the Claimant's work and the L&T contractors and recommended that he be given the benefit of doubt. The Respondent nonetheless dismissed him without explanation. The Respondent did not attend trial and did not file submissions despite repeated directions; its applications to re-open the case and for review were dismissed or struck out. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimant deserved the remedies sought. Following Emmanuel Fresco v Camusat Kenya Limited, the Court held that an employer lacks the latitude to set aside the findings of its own disciplinary process without a valid, explained reason. By ignoring the Committee's recommendation, the Respondent dismissed the Claimant on an unproved ground contrary to Section 43 and in violation of Section 41 of the Employment Act. Reinstatement was declined due to the lapse of time; the Claimant was awarded ten months' salary in compensation and one month's salary in lieu of notice, totalling Kshs. 1,334,421, with interest at court rates from the date of judgment, plus costs.

Key legal issues

Whether the termination was lawful and fair

Holding

The dismissal was substantively and procedurally unfair because the Respondent ignored the Disciplinary Committee's recommendation to give the Claimant the benefit of doubt and dismissed him on an unproved ground, without explanation.

Reasoning

The Disciplinary Committee expressly found no link between the Claimant's work and the L&T contractors and recommended the benefit of doubt. The Respondent nonetheless dismissed him without offering any explanation for departing from that recommendation. Citing Emmanuel Fresco v Camusat Kenya Limited, the Court held that an employer may not set aside its own disciplinary findings without valid reason. The dismissal thus failed the substantive justification test under Section 43 and the procedural fairness requirements of Section 41 of the Employment Act.

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Whether the Claimant is entitled to the remedies sought

Holding

Reinstatement was refused but compensation of ten months' salary plus one month's salary in lieu of notice was awarded.

Reasoning

The Claimant sought reinstatement or, alternatively, damages. Given the passage of time since separation, reinstatement was inappropriate. In assessing compensation the Court took into account the Claimant's length of service and the Respondent's unlawful conduct in ending the employment, awarding ten months' gross salary as compensation and one month's salary in lieu of notice.

p. 5

Legal principles established

An employer cannot set aside or ignore the findings of its own disciplinary process without a valid, explained reason; dismissing an employee on a charge for which the disciplinary process cleared him breaches Sections 41 and 43 of the Employment Act.

Court orders

1.Judgment entered in favour of the Claimant for 10 months' salary in compensation of Kshs. 1,213,110
2.One month's salary in lieu of notice of Kshs. 121,311
3.Total award of Kshs. 1,334,421 with interest at court rates from the date of judgment until payment in full
4.Claimant awarded the costs of the case

Authorities

Legislation

Employment ActSection 41
Employment ActSection 43
Employment AgreementClause 11

Cases cited (1)

Emmanuel Fresco v Camusat Kenya Limited and another
Cause No 1884 0f 2017

Jurisdiction invoked: Employment and labour relations jurisdiction under the Constitution (employment relationship between the parties)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Tonio v Kenya Power & Lighting Co Ltd (Cause 1359 of 2018) [2023] KEELRC 2544 (KLR)", Case Analysis (2023). Cause No 1359 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2544/eng@2023-10-19

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