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ELRCPartially AllowedMemorandum of Claim dated 17th June 2020· [2024] KEELRC 2421 (KLR)

Omondi v Technical University of Kenya (Employment and Labour Relations Cause 589 of 2018) [2024] KEELRC 2421 (KLR)

Employment and Labour Relations Court
26 September 2024
6,412 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a university unfairly sacked a lecturer by ambush-rescheduling his disciplinary hearing and relying on vague charges, awarding him substantial compensation.

What this practically means

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Executive summary

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The Claimant, a lecturer employed by the Kenya Polytechnic (later the Technical University of Kenya), sued for unfair termination following his dismissal by letter dated 4th January 2019, after a disciplinary process concerning failure to process and release examination results. The Court framed two issues: whether the termination was unfair, and whether the terminal dues sought were payable. On procedure, the Court found the notification phase satisfied through the show cause and invitation letters, but held the hearing phase violated Section 41 of the Employment Act because the hearing, scheduled for 9th October 2018, was abruptly moved to 8th October 2018 via an SMS on the morning of the hearing, leaving the Claimant unprepared, without his documents and without a representative, despite his protests. On substance, the charge in the invitation letter was too general, reaching back nearly a decade, and the Respondent produced no evidence that the Claimant received tutors' results and failed to release them; the memos were addressed to all tutors. Both procedural and substantive unfairness were established. The Court awarded a declaration of unfair termination, three months' gross salary in lieu of notice, four months' gross salary compensation under Section 49(1)(c), and compensation for earned but unutilized leave days, holding that unpermitted accumulated leave could not defeat the claim where the Respondent kept no records. The pension statement relief was refused for lack of evidentiary basis. A Certificate of Service was ordered within 30 days, with interest at court rates and costs to the Claimant.

Key legal issues

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01

Whether the termination was procedurally fair under Section 41 of the Employment Act

Holding

The termination was procedurally unfair because the hearing was brought forward from 9th October 2018 to 8th October 2018 without prior notification, depriving the Claimant of adequate preparation time and his documents

Reasoning

The Court held that preparation is integral to the hearing phase under Section 41. The Claimant protested he was unprepared, had left his documents at home expecting the 9th October hearing, and had no representative ready. The Respondent's explanation for rescheduling was found arbitrary and unsubstantiated, and the evidence was not rebutted. No bigger prejudice can be occasioned than depriving an employee of reliance on documents necessary for his defence.

p. 8
02

Whether the termination was substantively justified under Sections 43 and 45 of the Employment Act

Holding

The termination was substantively unfair: the charge was too general, and the Respondent failed to prove the Claimant received results from tutors and failed to release them

Reasoning

The charge in the invitation letter was general, allowing the Respondent to wander into matters of almost a decade, which the Claimant could not answer without records. The memos tendered were addressed to all tutors, not the Claimant specifically. The Respondent's witness had no document showing the Claimant received transmitted results but failed to release them; the Claimant's position that other tutors' defaults were being visited on him was unchallenged.

p. 11
03

The appropriate standard and test for substantive justification

Holding

The Court expressed reservations about the reasonableness ('band of reasonable responses') test, viewing it as not wholly aligned with Kenya's statutory and constitutional structure, though it acknowledged the balance of probability standard of proof

Reasoning

While accepting that the degree of proof is on a balance of probability as stated in Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others, the Court questioned whether the reasonableness test, which considers only the employer's perspective at the time of termination, fits with Section 45(7)'s requirement of equity and justice and with employee rights under the Bill of Rights, though it acknowledged its views might not be binding.

p. 9
04

Entitlement to compensation, notice pay, and leave days

Holding

The Claimant was awarded four months' gross salary as compensation under Section 49(1)(c), three months' notice pay, and compensation for earned but unutilized leave days

Reasoning

In exercising discretion under Section 49(1)(c), the Court considered the length of service, the Respondent's failure to adhere to procedural and substantive fairness, the industry, and the effect on future employment prospects. Notice pay was owed as termination took effect immediately with assurance of payment in lieu. Leave days were recoverable because the Respondent, as keeper of records, showed neither utilization nor compensation of untaken leave.

p. 11

Legal principles established

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  • Preparation for a disciplinary hearing is an integral part of the hearing component under Section 41 of the Employment Act; an employer must allow an employee adequate time to prepare and must not ambush employees with disciplinary hearings
  • Where the invitation to a disciplinary hearing contains a lesser number of charges than earlier documents, the charges for purposes of the hearing are those on the last document, and the reason for termination must flow from the documents and events preceding the hearing
  • The reason for terminating employment must be unambiguously set out; generalized grounds will seldom be considered valid and fair
  • Fairness of a termination requires both substantive and procedural fairness; absence of either renders the termination unfair
  • An employee whose employment has been terminated is entitled as of right to a Certificate of Service under Section 51 of the Employment Act

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unfair, procedurally and substantively
  2. 2.The Claimant be paid three (3) months' gross salary in lieu of notice (Kshs. 168,242 x 3) Kshs. 504,726.00
  3. 3.The Claimant be paid compensation for earned but unutilized leave days (Kshs. 168,242 x 54/30) Kshs. 201,890.40
  4. 4.The Claimant be paid compensation for unfair termination pursuant to Section 49(1)(c) of the Employment Act, four months' gross salary (168,242 x 4), Kshs. 672,968
  5. 5.The Claimant be issued with a Certificate of Service within 30 days of the Judgment
  6. 6.Interest on the monetary awards at Court rates from the date of judgment until payment in full
  7. 7.The Respondent shall bear the costs of the suit

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Employment ActSections 43 and 45
  • Employment ActSection 45(7)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51
  • Constitution of KenyaArticle 50
  • Fair Administrative Action Act
  • Collective Bargaining Agreement between the Respondent's Council and the Universities Academic Staff UnionClauses 5.2, 5.3 and 7.1(d)
  • Code of Conduct and Ethics for Public Universities

Cases cited (1)

  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and Section 49(1)(c) thereof

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omondi v Technical University of Kenya (Employment and Labour Relations Cause 589 of 2018) [2024] KEELRC 2421 (KLR)", Case Analysis (2024). Memorandum of Claim dated 17th June 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2421/eng@2024-09-26

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