Cavine Ouma Were v Pioneer Plumbers Limited
The bottom line
#Kenya's Court of Appeal confirmed that an employee claiming unfair termination must prove it, and a court need not follow a labour office conciliator's findings.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's termination was unfair and whether he was entitled to the remedies sought
The appellant failed to discharge his burden under Section 47(5) of proving unfair termination; the trial court correctly found he absconded for at least five months, so the termination was not unfair and most reliefs were unavailable.
The Court examined Sections 43, 45 and 47(5) of the Employment Act, which allocate the burden of proving unfair termination to the employee. The appellant could not prove his mother's or sister's death, the burials, or the days worked. The respondent produced attendance sheets from which the appellant could not establish a gap of over five months, supporting the finding of abscondment.
Whether the trial judge was bound by the findings of the District Labour Office (conciliator)
A trial court is not bound by a conciliator's findings and may depart from them for sound reasons; the learned Judge properly relied on the evidence on record since neither the conciliator nor the appellant was clear on the term of service.
The conciliator's report containing investigation and recommendations was not on record, the respondent had refuted the conciliator's allegations with documentary evidence, and neither the conciliator nor the appellant was clear as to the term of service. The Judge therefore justifiably relied on the evidence before her and could not be faulted.
Legal principles established
#- While commendable, a trial court is not mandatorily bound to adopt a conciliator's or labour officer's findings; it may depart from them for sound reasons given in its ruling.
- Under the Employment Act, the employee bears the burden of proving that an unfair termination occurred, while the employer bears the burden of justifying the grounds for termination.
- On a first appeal, the Court of Appeal is enjoined to re-evaluate the evidence and arrive at its own decision, subject to the caveat that it did not see or hear the witnesses.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs on account of the appellant's impecunious status
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- E.L.R.C Cause No. 1261 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Appeal against the Judgment and Decree of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cavine Ouma Were v Pioneer Plumbers Limited", Case Analysis (2020). Civil Appeal No 129 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/918/eng@2020-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.