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ELRCPartially AllowedNot stated in the judgment excerpt· [2024] KEELRC 141 (KLR)

Nyamongo v Board of Management, St Claire Kaplong Mission Hospital (Cause E017 of 2022) [2024] KEELRC 141 (KLR)

Employment and Labour Relations Court
6 February 2024
3,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a former general worker of Kaplong Mission Hospital employed from 17th July 1996, sued claiming wrongful summary dismissal on 5th November 2020 after suspension on 24th September 2020, allegedly for hawking clothes within the hospital during Covid-19 restrictions. She sought a declaration that the dismissal was unlawful, terminal dues including notice pay, unpaid salaries for August and September 2020, leave allowance, service gratuity, underpayments, compensation under section 49(1) of the Employment Act, a certificate of service, interest and costs. The respondent denied the claim, asserting the claimant was on yearly contracts, was caught hawking clothes, admitted the misconduct in a letter of 24th September 2020, was given a disciplinary hearing, and was lawfully dismissed for gross misconduct. The respondent also denied any recognition agreement or CBA with KUDHEIHA. The Court found the reason for termination was communicated but the claimant denied the misconduct and denied a fair hearing. Crucially, the Court found no evidence from the respondent of any internal disciplinary process and held the dismissal unfair and unjustified under section 45(2) of the Employment Act. On remedies, the Court awarded four months' notice pay per CBA Section 16, unpaid salary for August and September 2020, and eight months' salary as compensation. The underpayment claim failed for lack of proof; leave allowance and gratuity were not awarded as the claimant admitted receiving Kshs 50,959 as gratuity and her leave entitlements. Costs and interest at court rates from the date of judgment were awarded to the claimant. Note the judgment contains material arithmetic errors in the compensation computation and total award.

Key legal issues

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01

Substantive fairness of the summary dismissal for hawking clothes

Holding

The Court found the dismissal unfair and unjustified despite the allegation that the claimant hawked clothes in breach of Covid-19 measures.

Reasoning

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).

p. 7
02

Procedural fairness under section 41 of the Employment Act

Holding

The dismissal was procedurally unfair as there was no evidence of an internal disciplinary hearing.

Reasoning

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.

p. 7
03

Entitlement to notice pay under the CBA

Holding

The claimant was entitled to 4 months' notice pay per CBA Section 16, computed at Kshs 65,852.

Reasoning

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.

p. 7
04

Compensation for unfair termination

Holding

The claimant was awarded 8 months' salary as compensation for unfair termination.

Reasoning

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.

p. 7
05

Claim for underpayments

Holding

The underpayment claim failed for lack of proof.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.Respondent to pay notice pay of 4 months at Kshs 16,463 x 4 = Kshs 65,852
  3. 3.Respondent to pay unpaid salary for August and September 2020 at Kshs 16,463 x 2 = Kshs 32,926
  4. 4.Respondent to pay 8 months' salary as compensation for unfair termination (stated as 16,463 x 8 = 13,704)
  5. 5.Total awarded of Kshs 230,482 less statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment

Authorities

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Legislation

  • Employment Actsections 17, 18, 35, 36, 41, 43, 45, 46, 49
  • Employment Actsection 44(4)(e) and section 44(4)
  • Employment Act 2007section 45(2)
  • Labour Relations Actsection 59(1)(b) and section 2 (as quoted in Said Ndege Vs Steel Makers Ltd)
  • Constitution of KenyaArticle 40

Cases cited (4)

  • Pheoby Aloo Inyanga Vs Stockwell One Homes Management Limited & Another
    [2022] eKLR
  • Mckinley vs BC Tel
    [2001] 2 SCR 161, 2001 SCC 38 [CanLII]
  • Kiptum Nyaoke Vs Kenya Post Office Savings Bank
    [2022] eKLR
  • Said Ndege Vs Steel Makers Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and terminal dues claim)

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, "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.