Degener v German School Society (Cause E017 of 2021) [2024] KEELRC 1438 (KLR)
The bottom line
#A Kenyan court upheld a teacher's dismissal because she ran paid private lessons without the written consent her contract required.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of termination under Section 43 of the Employment Act
The Respondent had valid reason to terminate because the Claimant breached clause 11 of her contract by organizing private paid lessons without prior written consent
Clause 11 of the contract and the employees' handbook expressly barred the employee from any outside work without prior written consent of the Respondent. The Claimant proposed to offer 4 hours of private lessons at Kshs. 2,000 per child at a private residence during what would ordinarily be working hours, without seeking or obtaining the Respondent's written consent. Her contention that parental contact amounted to consent was rejected as inconsistent with the express contractual requirement. The termination therefore had a valid, contractually anchored reason.
Procedural fairness under Sections 41 and 45 of the Employment Act
Procedure was not faulted: the Claimant was issued a show-cause letter, responded, and was fairly heard at a disciplinary hearing of which she was advised of her right to be accompanied
The allegations were clearly spelt out and the e-mail relied on was availed to her. She attended the disciplinary hearing alone despite being advised of her right to a representative. The courtroom-like atmosphere did not limit her in stating her case, and the Respondent's Advocate's presence was not a material departure from Section 41. She could have engaged her own advocate to counterbalance. Accordingly, the procedural requirements of Sections 41 and 45 were satisfied.
Alleged violation of Article 41 constitutional rights and discriminatory or bad-faith dismissal
No instance of violation of the Claimant's Article 41 rights was found; the bad-faith and discrimination allegations were not established
The Claimant alleged malicious, discriminatory dismissal, pointing to colleagues who offered similar services without sanction. The Court found nothing sinister in the arrangement with parents but held the fault lay in the Claimant's failure to consult and seek the Respondent's concurrence. The Respondent, as a business entity, was entitled to control the provision of the same services it offers its customers, and dealt with the Claimant as it would any business rival. No Article 41 violation was established.
Legal principles established
#- An employee who breaches an express contractual prohibition on outside engagement without prior written consent gives the employer valid reason to terminate under Section 43 of the Employment Act, however noble the employee's intentions
- An employer's advocate's presence at a disciplinary hearing does not of itself breach Section 41 of the Employment Act where the employee is at liberty to be accompanied by a representative of her choice
Court orders
#- 1.The Claim is declined
- 2.No order on the costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment Act (as invoked by the parties' pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Degener v German School Society (Cause E017 of 2021) [2024] KEELRC 1438 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1438/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.