Nyamongo v Board of Management, St Claire Kaplong Mission Hospital (Cause E017 of 2022) [2024] KEELRC 141 (KLR)
The bottom line
#A Kenyan hospital's employee won Kshs 230,482 because the employer could not prove she got a fair disciplinary hearing before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of the summary dismissal for hawking clothes
The Court found the dismissal unfair and unjustified despite the allegation that the claimant hawked clothes in breach of Covid-19 measures.
The reason for termination (hawking clothes) was communicated by letter dated 5/11/2020 and the claimant denied the allegation. The respondent asserted a fair disciplinary process, but the claimant testified she was merely called to the HR office and served with a dismissal letter. The Court found no evidence of any internal disciplinary process and concluded the dismissal was unfair and unjustified under section 45(2).
Procedural fairness under section 41 of the Employment Act
The dismissal was procedurally unfair as there was no evidence of an internal disciplinary hearing.
The respondent averred the claimant was accorded a disciplinary hearing, but the claimant denied this, stating she was called to the HR and served with a dismissal letter. The Court found no evidence from the respondent of any internal disciplinary process, so the procedure requirement was not met.
Entitlement to notice pay under the CBA
The claimant was entitled to 4 months' notice pay per CBA Section 16, computed at Kshs 65,852.
Despite the respondent's submission that only one month's notice was payable under section 35 of the Employment Act, the Court accepted the claimant's entitlement under CBA Section 16 and awarded four months' notice pay of Kshs 16,463 per month.
Compensation for unfair termination
The claimant was awarded 8 months' salary as compensation for unfair termination.
Having found the dismissal unfair and unjustified, the Court exercised its discretion under the Employment Act to award eight months' salary as compensation, computed at Kshs 16,463 per month.
Claim for underpayments
The underpayment claim failed for lack of proof.
Although the claimant asserted underpayment was payable per the CBA and a wages order, she did not identify which wages order she referenced nor specify what portion of the CBA was not adhered to, so the claim was not proved.
Legal principles established
#- An employer bears the burden of producing evidence that an employee was subjected to an internal disciplinary process; where no such evidence exists, the dismissal is procedurally unfair.
- A dismissal without valid reason and without fair procedure is unfair under section 45(2) of the Employment Act.
Court orders
#- 1.Declaration that the dismissal of the claimant was unfair and unjustified under Section 45(2) of the Employment Act 2007 (as found by the Court)
- 2.Respondent to pay notice pay of 4 months at Kshs 16,463 x 4 = Kshs 65,852
- 3.Respondent to pay unpaid salary for August and September 2020 at Kshs 16,463 x 2 = Kshs 32,926
- 4.Respondent to pay 8 months' salary as compensation for unfair termination (stated as 16,463 x 8 = 13,704)
- 5.Total awarded of Kshs 230,482 less statutory deductions
- 6.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and terminal dues claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamongo v Board of Management, St Claire Kaplong Mission Hospital (Cause E017 of 2022) [2024] KEELRC 141 (KLR)", Case Analysis (2024). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/141/eng@2024-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.