Whether the Claimant was unfairly terminated
36.To determine whether or not a termination is fair, the Court is guided by the provisions of Sections 41, 43, 45 and 47 of the Employment Act, 2007. These provisions of the law relate to the procedure or termination process and the reasons for the termination.
37.Fair hearing is both a Constitutional and a statutory requirement, breach of which, entitles an employee to an award of compensatory damages.
38.Notwithstanding the reasons that an employer has to terminate/dismiss an employee, Section 41 of the Employment Act, 2007, demands that an employer explains to the employee in a language the employee understands, the reason for which it is considering termination/dismissal, and hear and consider any representation the employee may wish to make before making a decision to terminate.
39.In Philip Kimosop v Kingdom Bank Limited  eKLR, the Court held that the Respondent’s action of serving a show cause letter to the Claimant, inviting the Claimant to an oral hearing, giving the Claimant the right to call witnesses, produce documents and also be represented by another employee at the hearing constituted fair procedure. The Court emphasized that all these steps taken by the Respondent prior to terminating the Claimant’s employment qualified as following due procedure as contemplated by Section 41 of the Employment Act.
40.The Claimant herein, was issued with two show cause notices. The first one was issued on 7th December, 2015, and which he did not respond to and another on 9th December, 2020, which he responded to.
41.The notices were issued five years apart, and though the Claimant did not respond to the first letter, no follow-up action was taken against the Claimant. The Court will thus not give much attention to the show cause letter of 7th December, 2015, as nothing came out of it that concerns the dispute between the parties herein.
42.The Claimant confirmed that he attended and sat through the disciplinary hearing and only stepped out to allow deliberations by the disciplinary committee.
43.The Claimant’s only issue with the hearing, is that the Respondent’s Vice-Chancellor did not chair the disciplinary committee, and hence the disciplinary committee was not properly constituted, and further that he was not invited for the hearing of his appeal.
44.The Respondent’s assertion is that the Vice-Chancellor send his apology in respect of the disciplinary hearing and appointed a substantive chair for purposes of the hearing. The Respondent through their witness (RW1) confirmed to Court that the Claimant was not invited for the hearing of his appeal and that a verdict was issued without him being heard.
45.For starters, Section 41 of the Employment Act, does not provide for hearing or the need for an employee to make representation at an appellate stage, and I do not therefore think that determination of the appeal without the Claimant being heard is unprocedural.
46.The minutes of the Respondent’s Disciplinary Committee meeting produced in evidence by the Claimant, indicate that the Vice-Chancellor tendered an apology and the meeting was chaired by the Deputy Vice-Chancellor.
47.The policy on disciplinary procedure produced in evidence, does not state that the disciplinary committee meetings must be chaired by the Vice-Chancellor, and no other evidence was adduced to show that it was mandatory that the meeting be chaired by the Vice-Chancellor himself.
48.In my view, the Disciplinary Committee meeting cannot be said not to have been properly constituted by reason only that the Vice-Chancellor did not attend or chair the meeting. The meeting was chaired by his deputy and his apology was recorded.
49.In Hosea Akunga Ombwori v Bidco Oil Refineries Limited  eKLR the Court expounded on the provisions of Section 41 as follows: -
50.The Claimant was issued with a show cause letter which he responded to. He was invited to a disciplinary hearing which he attended and a subsequent appeal lodged against his termination, was deliberated and a verdict reached which sustained the Claimant’s termination.
51.There being no other issue or challenge to the procedure adopted by the Respondent in terminating the Claimant, I return that the Claimant’s termination is procedurally fair.
52.The second limb in determining a fair termination, is the reason(s) for the termination premised on the provisions of Sections 43, 45(2) and 47(5) of the Employment Act. An employer bears both the legal and the evidential burden of proof of reasons for termination where an employee makes allegations of unfair termination.
53.The employee retains the burden of proving the occurrence of unlawful and unfair termination, while the employer must prove the grounds leading to the termination in accordance with Section 47(5) of the Employment Act.
54.The letter terminating the services of the Claimant was produced in evidence before Court and which leads to an inescapable conclusion that a termination occurred. (See Charles Wanjala Watima v Nyali Golf & Country Club Ltd  eKLR). The burden then shifts to the employer to prove the reasons for the termination and the justification thereof.
55.The ground for the Claimant’s termination is for engaging in other gainful employment. The Respondent’s position is that being a public entity and on account of which the Claimant was a public officer, he was prohibited under both the Constitution and the Public Officer’s Ethics Act from engaging in other gainful employment.
56.The Claimant’s response was that though he was engaged by catholic University of Eastern Africa (CUEA) at the same time he was engaged at the Respondent’s institution, he was working for CUEA on part time basis.
57.A letter by the CUEA to the Respondent produced in evidence showed that the Claimant was employed at the CUEA on full time basis while he was serving on full time basis with the Respondent. Pay slips from both institutions are also a clear indication that the Claimant was serving both universities on full time basis.
58.Further, other than the assertion by the Claimant that he served at the CUEA on part time basis, he was drawing remuneration made up of a salary, house allowance, commuter allowance and pension benefit, while at the same time, he was on duty at Maseno University, still on a full-time basis and also drawing a salary, house allowances and other allowances.
59.In my view, there would be nothing wrong if the Claimant served one institution on a full time basis and another on part time or as a consultant. One cannot certainly be expected to serve two different institutions, doing the same job on full time basis. It would certainly take a magician to do this.
60.Further, where an employee is “shared” by two institutions, albeit unknowingly, issues of conflict of interest are bound to occur.
61.In my opinion, where an employee draws two salaries at the end of the month, on account of a full time job, it can safely be said that one employer hugely suffered a disservice.
62.I find and hold that the Respondent’s reason for terminating the Claimant are valid, fair and justified.
63.The upshot therefore is that the Claimant’s termination was both procedurally and substantively fair.