Waweru v Ackerman & another (Employment and Labour Relations Petition 51 of 2022) [2023] KEELRC 3031 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The process was cosmetic and pre-determined because it was anchored on show cause and suspension letters signed on behalf of the COO without his authority, an issue never specifically denied by the Respondents
The show cause and suspension letters of 22nd March 2021 purported to be authored by Dr Kekovole but were signed on his behalf while he was on leave. Kekovole denied authorship, instruction, knowledge and consent in his witness statement and reported the forgery to police. The Respondents did not specifically deny the forgery in their answering affidavits; the further supplementary affidavit was an afterthought and did not assert authority. The process was therefore a camouflage for a predetermined termination.
Substantive fairness of the termination
The dismissal was without substantive justification because the accusations concerned laboratory and nursing matters that had been removed from the Petitioner's docket, and the employer produced no evidence contradicting her plausible explanations
The Respondents did not deny that nursing and laboratory matters were removed from the Petitioner's docket by the CEO, so her assertion that she was dismissed on matters outside her scope was deemed admitted. Her explanations at the disciplinary hearing were plausible and unrebutted by any material. No reasonable employer would dismiss an employee giving such explanations absent contradicting evidence. The burden under sections 43 and 45(2) was not discharged.
Pay discrimination and equal remuneration
Claim failed; the Petitioner did not prove that the pay difference with Dr Nyawira was based on prohibited grounds
An employee alleging discrimination must first establish a prima facie case before the burden shifts to the employer under section 5(7) of the Employment Act. A comparator is required. The Respondent's unrebutted evidence showed the comparator was differently trained, more qualified and performed different tasks. Mere inequality of treatment does not amount to discrimination absent arbitrariness on prohibited grounds.
Infringement of the right to fair labour practices under Article 41
The Respondents' arbitrary and capricious actions infringed the Petitioner's Article 41 right; general damages of Ksh.500,000 awarded
Anchoring a disciplinary process on forged foundational documents; dismissing an employee for infractions outside her docket and control; and ignoring her unrebutted explanations were capricious and arbitrary acts. The court held these amounted to an infringement of the right to fair labour practices and awarded general damages of Kshs.500,000.
Striking out paragraphs 31 and 33 of the supporting affidavit
Expunged for failure to disclose the source of information on matters outside the deponent's knowledge
Order 19 rule 3(1) of the Civil Procedure Rules confines affidavits to facts within the deponent's own knowledge. The matters deposed in paragraphs 31 and 33 could not be concluded to be within the Petitioner's knowledge and no source of information was disclosed, offending the procedural rules on affidavits.
Expunging the witness statement of Dr Andrew Kekovole
Refused; the statement spoke to matters raised in the petition and cross-examination rights had been waived
The court had directed determination on the basis of filed material and the parties waived viva voce evidence and cross-examination, so the Respondents could not complain of prejudice. Evidence at variance with pleadings is disregarded but not struck out. The statement supported matters pleaded in the petition.
Remedies
Compensation of eight months' gross salary (Ksh.5,600,000), Ksh.675,000 for unutilised leave and Ksh.500,000 general damages; reinstatement and discrimination damages refused
Under section 49(1)(c) the compensatory award is discretionary; considering the lack of good faith, breach of mutual trust, length of service and the Petitioner's non-contribution to the dismissal, eight months' salary was awarded. The claim for unutilised leave was unrebutted and allowed. Reinstatement was impracticable and the discrimination claim unproven.
Legal principles established
#- A letter signed on behalf of another without that person's instruction, knowledge or consent is a forged document or one uttered falsely, and a disciplinary process anchored on forged foundational documents is a predetermined, cosmetic process
- Where an employee alleges pay discrimination, she must first establish a prima facie case and demonstrate that the pay difference was engineered by arbitrary or prohibited grounds; a comparator is required
- It is not enough for an employer to conclude that an employee did not give sufficient explanations; the conclusion must flow from material placed before the disciplinary panel
- Reinstatement is discretionary and practicability under section 49(4) of the Employment Act must be considered
Court orders
#- 1.A declaration that the termination of the Petitioner's employment was both procedurally and substantively unfair
- 2.Eight months' gross salary as compensation for unfair dismissal pursuant to section 49(1)(c) of the Employment Act - Ksh.5,600,000
- 3.Compensation for earned but unpaid leave days - Ksh.675,000
- 4.General damages for the breach of the Petitioner's right to fair labour practices - Kshs.500,000
- 5.Interest on the awarded sums at court rates from the date of the judgment till full payment
- 6.Cost of the Suit and interest
- 7.Paragraphs 31 and 33 of the Petitioner's supporting affidavit expunged
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under Article 41 of the Constitution and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Ackerman & another (Employment and Labour Relations Petition 51 of 2022) [2023] KEELRC 3031 (KLR)", Case Analysis (2023). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3031/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.