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ELRCPartially AllowedCause No 2149 of 2017· [2024] KEELRC 20 (KLR)

Aseka v South African Airways (Proprietary) Ltd (Cause 2149 of 2017) [2024] KEELRC 20 (KLR)

Employment and Labour Relations Court
24 January 2024
4,630 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent from 1995 until 13th/16th October 2017 and last serving as Finance Supervisor earning Kshs 467,457 gross, sued for unlawful termination and terminal dues after being dismissed on allegations that she presented a forged Bachelor of Commerce Degree Certificate from Inoorero University. She alleged victimisation by a colleague, denial of a hearing, and claimed notice pay, unpaid October 2017 salary, leave, medical reimbursement, lifetime air tickets, service pay, certificate of service and maximum compensation. The Respondent maintained the dismissal followed a disciplinary inquiry which the Claimant declined to participate in. The court first disposed of the victimisation allegation as unsupported by particulars or evidence. On substantive fairness, it found the Respondent failed to prove a valid and fair reason under Section 43: no document examiner's report was produced, investigations were incomplete, the criminal case remained pending, and the claimant's enrolment was corroborated by the former Vice-Chancellor. On procedure, however, the court found the Respondent complied with Section 41: the claimant was suspended, availed documents, adjournment granted, and she attended the hearing but walked out without participating, so she could not later complain of being unheard. The court declared the termination unfair for want of substantive justification and awarded two months' salary in lieu of notice per the CBA (Kshs 934,914), unpaid salary for 16 days of October 2017 (Kshs 241,268 unless paid), compensation of 8 months' gross salary under Section 49(1)(c), and a certificate of service. Claims for leave days, medical reimbursement, air tickets and service pay were declined as unsubstantiated, the CBA clause covering only severance pay on redundancy. Costs and interest at court rates were awarded to the Claimant.

Key legal issues

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01

Validity and fairness of the reason for termination

Holding

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.

Reasoning

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.

p. 7
02

Procedural fairness under Section 41

Holding

The Respondent complied with Section 41; the claimant was invited, availed documents, and attended the hearing but walked out without participating.

Reasoning

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.

p. 9
03

Alleged victimisation by Jane Ngaira

Holding

The allegation that the claimant was targeted for dismissal lacked particulars and evidentiary support.

Reasoning

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.

p. 6
04

Quantum of compensation

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Declaration that termination of employment was unfair
  2. 2.2 months' salary in lieu of notice Kshs 934,914.00
  3. 3.Unpaid salary for 16 days worked in October 2017, Kshs 241,268/=, unless paid
  4. 4.8 months' gross salary as compensation under Section 49(1)(c) of the Employment Act
  5. 5.Certificate of service
  6. 6.Costs of the suit
  7. 7.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSections 41, 43, 43(1), 43(2), 44, 45, 47(5), 49(1)(c), 51
  • Constitution of Kenya, 2010Articles 41, 47, 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Ken freight (EA) Limited v Benson K. Nguti
    (2016)
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
  • Judicial Service Commission v Gladys Boss Shollei & another
    (2014) eKLR
  • Geoffrey Kiragu Njogu v Public Service Commission & 2 others
    (2015)
  • Attorney General & another v Andrew Maina Githinji & another
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court)

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, "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.