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ELRCPartially AllowedNot stated in the judgment (ELRC Cause)· [2021] KEELRC 10 (KLR)

John Mairura Omogo v Mirema School [2021] KEELRC 10 (KLR)

Employment and Labour Relations Court
20 December 2021
5,961 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, an accountant employed by the Respondent school from 11th March 2013 at a monthly salary of Kshs. 63,417, claimed that on 8th January 2015 he was sent on compulsory leave pending undisclosed investigations and never recalled, with his employment ending without a termination letter or payment of dues. The Respondent contended he was interdicted by letter dated 15th December 2014, invited to disciplinary hearings, and summarily dismissed in March 2015 for non-attendance, and counter-claimed for school fees arrears of Kshs. 75,450 under a signed agreement dated 16th September 2015. The Court identified six issues, principally procedural and substantive fairness of the termination. It found the Respondent's disciplinary letters untrustworthy: a hearing said to be on Monday 15th February 2015 fell on a Sunday, and a hearing was fixed for 29th February 2015, a date that did not exist. The directors involved were not called, and delivery of the letters was not proved. The Court held the termination unprocedural, and the stated reason (non-attendance at meetings that never occurred) invalid, hence not substantively fair. The Claimant was awarded one month's notice pay, unpaid salary of Kshs. 73,417, seven months' gross salary as compensation under section 49(1)(c), and unpaid leave computed at 21 days per year, with costs and interest. The counter-claim succeeded on the fees agreement, judgment entered for the Respondent for Kshs. 75,450 with interest from 16th September 2015, the award to be set off against the Claimant's awards.

Key legal issues

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01

Whether the termination was procedurally fair

Holding

The termination was unprocedural; the Respondent failed to prove that disciplinary letters were delivered or that a hearing took place

Reasoning

The Respondent relied on letters inviting the Claimant to disciplinary hearings, but the Claimant denied receipt. The letters contained palpable fabrications: a hearing date said to be a Monday falling on a Sunday, and a hearing fixed for 29th February 2015, a date that does not exist. The witness's account of delivery was vague, and the directors allegedly involved in the interdiction were not called. The Court concluded the letters were afterthoughts crafted for the suit, and that the statutory procedure under sections 41 and 45 was not followed.

p. 7
02

Whether the termination was substantively fair

Holding

The dismissal was not substantively fair; the stated reason (failure to attend hearings that never occurred) was invalid

Reasoning

Under sections 43 and 45 of the Employment Act, the employer bears the burden of proving a valid and fair reason. The dismissal letter cited the Claimant's non-attendance at hearings scheduled for dates that were impossible or non-existent. The accusations in the letters differed from those in the dismissal letter, and no minutes of any disciplinary proceedings were produced. The Court therefore found the reason neither valid nor fair and the dismissal lacked substantive fairness.

p. 7
03

Whether the Respondent proved its counter-claim for school fees arrears

Holding

The counter-claim succeeded on the strength of the signed fees arrears agreement

Reasoning

The Claimant signed an agreement dated 16th September 2015 undertaking to pay his son's fees arrears of Kshs. 75,450. He admitted the arrears remained unpaid. Having bound himself by that agreement, he was estopped from denying liability, and judgment was entered for the Respondent on the counter-claim with interest from the date of the agreement.

p. 8

Legal principles established

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  • Fair procedure under section 41 of the Employment Act entails three components: information, hearing and consideration; absence of any renders the termination unfair
  • An employee cannot be sanctioned for failing to attend meetings that never took place; an implausible reason for dismissal is not a valid and fair reason
  • An employee who signs an agreement acknowledging a debt is estopped from denying it

Court orders

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  1. 1.One month's salary in lieu of notice, Kshs. 63,417
  2. 2.Unpaid salary for part of November 2014 and December 2014, Kshs. 73,417
  3. 3.Compensation pursuant to section 49(1)(c) of the Employment Act - 7 months' gross salary, Kshs. 443,919
  4. 4.Unpaid leave, Kshs. 88,783.0
  5. 5.Costs to the Claimant
  6. 6.Interest at court rates from date of Judgment till full payment
  7. 7.Judgment for the Respondent on the counter-claim for Kshs. 75,450, with interest from 16th September 2015
  8. 8.Respondent to pay the awarded sums less the counter-claim amount and statutory taxes
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim for unfair termination)

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, "John Mairura Omogo v Mirema School [2021] KEELRC 10 (KLR)", Case Analysis (2021). Not stated in the judgment (ELRC Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/10/eng@2021-12-20

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