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ELRCPartially AllowedELRC Cause No. 297 of 2018· [2024] KEELRC 1115 (KLR)

Butalanyi v Technical University of Kenya (Cause 297 of 2018) [2024] KEELRC 1115 (KLR)

Employment and Labour Relations Court
14 May 2024
JGJacob Gakeri
6,179 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan university failed to prove an employee was absent from work, so her dismissal was unfair and she won compensation, notice pay and costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent since 1989 as a Technician and later Senior Technician, was summarily dismissed in August 2009 while on study leave for doctoral studies in the UK. In Industrial Court Cause No. 1601 of 2011 she obtained an award reinstating her to her previous position effective 1st June 2015; she opted for reinstatement and the Respondent reinstated her as a Senior Technician at Kshs.54,592. Disputes followed over her grading, non-availment of her PhD certificate and other documents, and non-allocation of teaching duties. After a notice to show cause dated 11th May 2017 for neglect of duty and absence without permission, and a disciplinary hearing on 28th September 2017, her employment was terminated on 16th February 2018. She sued for declarations and damages. The court framed two issues: whether the termination was unfair, and entitlement to reliefs. It found the Respondent failed to prove on a balance of probabilities that the Claimant deserted or absented herself from duty: no tabulation of absent days was produced, an internal memo stated there was no record of absenteeism, and the attendance records tendered lacked authentication. Substantive justification therefore failed, and the termination was declared unfair. However, the disciplinary process substantially complied with section 41 of the Employment Act. The unpaid salary claim was dismissed for want of particulars and proof; exemplary damages were refused for lack of evidence. The court awarded salary increments under the operative CBA from the date of reinstatement if unpaid, compensation of four months' gross salary, notice pay per the CBA, and costs to the Claimant.

Key legal issues

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01

Whether the Respondent proved a valid and fair reason for termination (absconding/absenteeism)

Holding

The Respondent failed to prove on a balance of probabilities that the Claimant deserted or absented herself from the workplace; the allegation was unsubstantiated

Reasoning

The Respondent produced an internal memo stating there was no record of the Claimant's absenteeism, yet its Head of Department alleged she had not reported since April 2017 without attaching a work schedule or showing specific dates of absence. The 7 pages of attendance records lacked authentication, dates were barely visible and could not be associated with the Respondent. The notice to show cause gave no dates, particulars of absence were never supplied, and no evidence of searching for the Claimant was tendered.

p. 11
02

Whether the disciplinary process complied with section 41 of the Employment Act

Holding

The process substantially complied with section 41 and was procedurally fair

Reasoning

The Claimant was issued a notice to show cause to which she responded, was invited to a disciplinary hearing held on 28th September 2017, was informed of her right to be accompanied by another person, and her appeal was heard and upheld by the University Council Staff Appeals Review Committee. The court was not persuaded that absence of her counsel or union representative violated her rights.

p. 12
03

Whether the Claimant was reinstated to her previous position per Cause No. 1601 of 2011

Holding

The Claimant's designation was Senior Technician; she was a course tutor only in an auxiliary capacity, and the Respondent reinstated her as a Senior Technician as she was at termination

Reasoning

Documentary evidence showed the Claimant was employed as a Technician and promoted to Senior Technician; tutoring students and conducting examinations were auxiliary duties allocated by the Chair of Department. She had not availed her PhD certificate or other documents to enable placement in the transitioned university's new grading structure.

p. 8
04

Entitlement to salary in lieu of notice and compensation

Holding

Claimant entitled to notice pay per the CBA and compensation equivalent of 4 months' gross salary

Reasoning

Having found the termination substantively unfair, compensation under section 49(1)(c) was warranted. Quantum was tempered by the Claimant's long service since 1989 and her appeal expressing wish to continue working, offset by her contribution to the termination by refusing to avail her certificates, which the court viewed as impunity. Notice pay was to comply with the CBA in force.

p. 13

Legal principles established

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  • A termination must be supported by both a valid and fair reason and a fair procedure to pass the fairness test
  • The employer bears the burden of proving the reasons for termination; failure renders the termination unfair
  • Desertion is distinguishable from absence without leave by the employee's intention not to return

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair.
  2. 2.Salary increments effective the date of reinstatement to the date of termination of employment, if unpaid.
  3. 3.Equivalent of 4 months gross salary as compensation under section 49(1)(c) of the Employment Act, 2007.
  4. 4.Notice pay as per the CBA in force.
  5. 5.Costs of this suit to the Claimant.

Authorities

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Legislation

  • Employment ActSections 41, 43, 44 (including 44(4)(a)), 45 (including 45(1), 45(2)(a),(b),(c),(5)), 47(5), 49(1)(c)
  • Evidence Actgeneral
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (15)

  • Anthony Makala Chitavi v Malindi Water and Sewerage Company Limited
    [2013] eKLR
  • Jonathan Chepknony v George Makateto, acting Chief Executive Officer, Export Processing zone Authority [EPZA] & 2 Others
    eKLR
  • Ruth Adhiambo Apindi v Uneliver Kenya Limited
    (2020) eKLR
  • Ann Njoroge vs Topez Petroleum Ltd
    (2013)
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    [2017] eKLR
  • Seabolo v Belgravia Hotel
    [1997] 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    [2018] eKLR
  • Joseph Nzioka V Smart Coatings Ltd
    [2017] eKLR
  • Judith Atieno Owuor v Sameer Agriculture & Livestock Ltd
    [2020] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    [2017] eKLR
  • Loice Otieno V Kenya Commercial Bank
    (2013) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Rookes v Barnard & others
    [1964] AC 1129
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over unfair termination claims under the Employment Act, 2007

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, "Butalanyi v Technical University of Kenya (Cause 297 of 2018) [2024] KEELRC 1115 (KLR)", Case Analysis (2024). ELRC Cause No. 297 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1115/eng@2024-05-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.