MMW Advocates LLP Update

By April 24, 2023 No Comments
Stella Muraguri Photo 2 (002)

On reasons for termination being genuine at the point of termination

From this reading, it is irrefutable that the Respondent’s burden of proof at the point of terminating the Claimant’s employment can only be confined to “reasons the Respondent genuinely believed to have existed” at the time it sought to terminate the Claimant’s employment. -Section 45 of the Employment Act & Kenya Revenue Authority -v- Reuwel Waithaka Gitahi & 2 others [2019] eKLR

On disciplinary hearings being an administrative process

“Professional disciplinary processes are not criminal or quasi-criminal in nature … they are designed to maintain ……., professional integrity and professional standards and to regulate conduct within the profession in question.”-Anil Mussani -v- College of Physicians and Surgeons of Ontario [2003], 64 O.R. (3d) 641:

Employers and their disciplinary panels are not courts or judicial tribunals. This right to a fair hearing as enshrined in Article 50 (1) relates to legal proceedings in courts and other judicial tribunals… Employers and their disciplinary panels are not courts or judicial tribunals and it is therefore a huge misdirection to assess their conduct of disciplinary hearings using the judicial paradigm.-Judicial Service Commission -v- Gladys Boss Shollei & Another [2014] eKLR

On Compensation-claimant must justify why they deserve a particular award and not awarded as a matter of right. Discretion by the court must be judicious

“The compensation awarded to the respondent under this head was the maximum awardable, that is to say, 12 months’ pay.

The trial judge did not at all attempt to justify or explain why the respondent was entitled to the maximum award. ..the exercise of the Court’s discretion should not be capricious or whimsical. -Ol Pejeta Ranching Limited -v- David Wanjau Muhoro [2017] eKLR

Sound judicial principles mean that the court should consider-contribution by the employee towards the termination must be considered in awarding an employee-Read together with Section 49 (4 ) of the Employment Act.

Is it reasonable to expect an employer to retain the services of an employee who has displayed ill-conduct?-The reasonable test.

Judicial Service Commission -v- Gladys Boss Shollei and Another [2014] eKLR:-

“From my own analysis of the record before us, I would very much doubt that there are many employers who, faced with conduct such as displayed by the 1st Respondent, would have retained her in her position.

It probably would have been the only reasonable and responsible cause of action left open to the employer. The dismissal, therefore, passes with ease the test propounded by Lord Denning in the same British Leyland case (ibid.);

“Was it reasonable for the employer to dismiss him? If a reasonable employer might have reasonably dismissed him, then the dismissal was fair.”

Interest and Costs.- Can a lethargic claimant be awarded full interest/costs?

With respect to interest and costs, the Respondent submits that the length of prosecution of this matter cannot be faulted upon the Respondent.

Therefore, to allow interest to accrue on account of the Claimant’s lethargic prosecution of this matter and the administrative challenges at the ELRC registry in fixing hearing dates should not be visited upon the Respondent.