unfair dismissal

Que: Can you be fired for suing the employer you are working for?

Ans: Yes, if your employer can show that the subject of the proceedings is irresponsible and without foundation (Section 46(h) of the Employment Act).

Criminal-Lawyer-Brownsville-TXQue: We terminated an employee who stole from the company and we later reported him to the police. Criminal proceedings were commenced against him but he was discharged due to lack of evidence. He has now sent a demand letter to the company seeking damages for unfair termination. Should the company settle?

Ans: As long as the company has sufficient cause and evidence to believe that the employee stole from the company, the company was entitled to terminate his contract. This position is not affected by the subsequent discharge or acquittal of the former employee.

In Ismail Hassan Abdullahi v Kenya Ports Authority [2013] eKLR, the court held that: –

In my view the purposes of a disciplinary process is to inquire into allegations relating to the breach of obligations as between an employer and an employee with a view to terminating the employment contract while the criminal process has its own different purposes and objectives, and its own momentum.

The legal principles applicable in a criminal process are different from the legal principles applicable in a disciplinary process. Mutual trust and confidence is one such principle which is crucial in an employment relationship but which is not a principle which would be considered in a criminal process.

In the one the outcome could be separation between employee and employer and in the other conviction and sentence by an independent and impartial court. In a disciplinary process it is the employer who is in charge while in a criminal trial it is the Republic and the judiciary. Therefore the outcome of a disciplinary process need not depend on the outcome of a criminal process.

In Wilberforce Ojiambo Oundo v Regent Management Limited [2013] eKLR, the court held that: –

In the case of Hezekiel Oira Vs Kenya Broadcasting Corporation & Another [2013] eKLR this Court held that the sequencing of internal disciplinary proceedings before conclusion of criminal proceedings facing the Claimant did not of itself invalidate the disciplinary proceedings.

It follows therefore that just like an employer is not required to await the outcome of a criminal trial before taking disciplinary action against an employee, the employee’s rights cannot be held in abeyance pending the outcome of a criminal trial. An employer who initiates disciplinary action against an employee cannot be allowed to abdicate its responsibility to complete the disciplinary process because of the pendency of criminal proceedings.

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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