On 21st October 2020, the Employment & Labour Relations Court (ELRC) awarded Ms Lillian Omollo only Kes. 1/= as damages for unfair termination.

This article examines why she was only awarded one bob when the Court had the power to award her up to 12 months salary for unfair termination and even more for breach of her Constitutional rights.

The facts…

  • Ms Omollo was employed as the PS, Public Service and Youth.
  • In May 2018, she stepped aside pending investigations into alleged mishandling of funds.
  • In May 2018, she was charged with corruption-related offences.
  • In June 2018, she was suspended pending the conclusion of the criminal case.
  • In May 2020, she was informed that she no longer held the office of PS Public Service as a replacement had been appointed.
  • She filed a case in the ELRC citing breach of her Constitutional rights to due process and unlawful termination.

The judgment

Hon. Justice Radido of the ELRC recognized that there had been a breach of her Constitutional rights to due process (it is obvious from the facts that she was not accorded due process) and proceeded to award her only Kes. 1/= as damages.

But why did she only get one bob….?

Because the Judge recognized that she had been found guilty of the corruption charges which had been brought against her. In essence, even if the government did not follow the proper procedure when letting her go, the government had every right to let her go because of the proven corruption charges.

The outcome of the criminal trial was therefore taken as clear evidence of her culpability.

What can we learn from this…?

The Court will not turn a blind eye to an ex-employee’s wrongdoing when determining cases of unfair termination.

The circumstances in which the termination took place, including the extent to which the ex-employee caused or contributed to the termination, will be taken into account when assessing damages.

Other examples…

  • In Kenya Commercial Bank Limited v Thomas Nyangi Mwita [2019] eKLR, the Court of Appeal reduced the award of the ELRC from 12 months’ salary to 4 months’ salary because there was ample evidence that the claimant was guilty of wrongdoing. The damages were awarded only because the bank did not follow the strict rules of termination under the Employment Act, 2007.
  • In Samuel Kalomit Murkomen v Telkom Kenya Limited [2017] eKLR, the claimant was awarded only one month’s salary as compensation because there were valid grounds for his termination but there were flaws in the termination procedure followed by the employer.

Where does this stem from?

According to Section 49(4) of the Employment Act, the ELRC is supposed to consider an ex-employee’s contribution to the termination when assessing damages for unfair termination.

Conclusion

An employer who needs to defend an unfair termination case, and who is aware that they did not follow the stipulated termination process, should put forward a strong case to show the ex-employee’s culpability in order to try and reduce the damages which the ex-employee may be awarded.

***THE END***

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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