Aseka v South African Airways (Proprietary) Ltd (Cause 2149 of 2017) [2024] KEELRC 20 (KLR)
The bottom line
#Kenya's Employment Court ruled South African Airways unfairly sacked a finance supervisor, finding employers must prove forgery allegations with real evidence, not just suspicion.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for termination
The Respondent failed to prove a valid and fair reason; investigations into the alleged forged certificate were incomplete and no forensic evidence was adduced, contravening Section 43.
The Respondent alleged the claimant presented a forged degree certificate but produced no document examiner's report and the criminal case remained pending. The court held that without forensic or other evidence raising doubts as to authenticity, the employer could not show a genuine belief in the reason for termination. Evidence of the claimant's enrolment by the former Vice-Chancellor was uncontroverted. Section 43(2) requires the reason be a matter the employer genuinely believed existed at termination.
Procedural fairness under Section 41
The Respondent complied with Section 41; the claimant was invited, availed documents, and attended the hearing but walked out without participating.
The record showed the claimant was suspended, requested and received the documents relied on, obtained an adjournment, and received the notice to show cause. Although the Respondent did not file minutes, a 'sanction' document signed on 13th October 2017 recorded findings of guilt on both charges. The court held the employer gave the claimant an opportunity to defend herself and her walking out without explanation could not be visited on the employer.
Alleged victimisation by Jane Ngaira
The allegation that the claimant was targeted for dismissal lacked particulars and evidentiary support.
The claimant alleged that a colleague orchestrated her suspension and dismissal to replace her with another employee. The court found no particulars were pleaded and no evidence was adduced to substantiate the allegation, so it had no effect on the judgment.
Quantum of compensation
Compensation equivalent to 8 months' gross salary awarded under Section 49(1)(c), considering 22 years of service, absence of appeal, a prior warning, and no contribution to the termination.
Having found the termination substantively unfair, the court applied Section 49(1)(c) rather than general damages. It weighed the length of service (about 22 years), the claimant's failure to appeal or express a wish to continue working, records of a previous hearing and warning, and her non-contribution to the termination, and settled on 8 months' gross salary.
Legal principles established
#- For a termination to pass the fairness test it must be both substantively justified and procedurally fair
- Pendency of criminal proceedings is not a bar to internal disciplinary proceedings; the two are anchored on different matters and standards of proof
- The burden lay on the employer to demonstrate it genuinely believed the reason for termination existed
- An employee accorded an opportunity to be heard who walks out of the hearing cannot later complain of being unheard
Court orders
#- 1.Declaration that termination of employment was unfair
- 2.2 months' salary in lieu of notice Kshs 934,914.00
- 3.Unpaid salary for 16 days worked in October 2017, Kshs 241,268/=, unless paid
- 4.8 months' gross salary as compensation under Section 49(1)(c) of the Employment Act
- 5.Certificate of service
- 6.Costs of the suit
- 7.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aseka v South African Airways (Proprietary) Ltd (Cause 2149 of 2017) [2024] KEELRC 20 (KLR)", Case Analysis (2024). Cause No 2149 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/20/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.