The Employment and Labour Relations Court (ELRC) has ruled that in a disciplinary matter, an employer is bound to issue a notice and hear an employee.

The court further ruled that due process requires the employer to terminate employment in accordance with the law.

“The employer is bound to issue a notice and give reasons for the action taken for it (action) to be valid and fair,” ruled Justice Monica Mbaru of the ELRC in Mombasa.

Justice Mbaru made the decision in a case where she ruled that the county government of Taita Taveta (respondents) sacked Mr Frank Jumapili and Jason Mwamodenyi (claimants) unlawfully and unfairly contrary to the Employment Act.

The two were employed on March 27, 2023, as a water, hygiene, sanitation and health advisor and a peacebuilding and conflict resolution advisor, respectively.

The court issued a declaration that the employment of Mr Jumapili and Mr Mwamodenyi was terminated unfairly and it directed that they each be paid Sh1.6 million as compensation and that a certificate of service be issued.

Justice Mbaru noted that the claimants were under written contracts that they hoped to serve until the end of the governor's term on August 27 2027 and that they (contracts) were cut short due to the governor's unlawful and unfair actions.

“The claimants had invested in their employment and secured loans that they are unable to repay due to the respondent's unlawful acts. The termination of employment was carried out in the most brutal manner without any iota of due process and under the belief that the pleasure doctrine applied to the county government,” ruled that judge.

The ELRC ruled that the motions of the County Government Act or an employment contract on its own cannot suffice and that due process requires the employer to terminate employment in accordance with the law.

Justice Mbaru noted that during the hearing of the case, a witness called by the respondent was emphatic that the governor had the right to employ and to terminate employment at will.

“That cannot be held in a democratic society as the people of Kenya have affirmed through the constitution,” ruled Justice Mbaru.

Mr Jumapili told the court that before the respondent terminated his employment, no notice or reasons were given, he was not invited to a disciplinary hearing, and his employment contract was to expire with the governor's term.

He told the court that the decision to terminate his employment was harsh as he had an outstanding loan he was repaying through payroll deductions from his monthly salary.

The claimant was also seeking an order for reinstatement to restore him to his employment.

On his part, Mr Mwamodenyi testified that he was employed by the respondent on March 27 2023 for a term of the governor.

The claimant told the court that he was issued with a notice of termination of his employment, no reasons were given and that there was no disciplinary hearing held on any matter.

On its part, the county government admitted the employment relationship, said the termination was procedural and that the order of reinstatement was not justified.

It further argued that consultations were held before the termination of employment and that on that basis, notices were issued.

The county government argued that the governor employed the claimants, he terminated their employment and that representation was unavailable because they (claimants) were serving (his) governor's pleasure.

The court also declined to order the reinstatement of the claimants noting that it would not be an appropriate remedy.

It said that such an order would be issued only in exceptional cases where it was clear that it was the only one capable of addressing the injustice visited on the employee.

“The working relationship between the claimants and the respondent was that of advisors. This means close contact which will not be possible to secure upon reinstatement. It may even end in more frustrations than ever before,” ruled the court.