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ELRCPartially AllowedCause 2078 of 2011· [2013] KEELRC 440 (KLR)

KENYA UNION OF DOMESTIC, HOTELS EDUCATIONAL INSTITUTIONS, HOSPITALS AND ALLIED WORKERSCHARLES WAITHAKA GOKO t/a APPLE BEES PUB AND RESTAURANT [2013] KEELRC 440 (KLR)

Industrial Court of Kenya
12 April 2013
1,589 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who skips a labour case loses by default: the court presumed unfair termination and awarded the worker Kshs. 141,846.

What this practically means

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Executive summary

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The Claimant union, KUDHEIHA, sued on behalf of its member Joel Kipserem Kisior (the Grievant), an Assistant Chef employed by the Respondent from 18th June 2004 at an initial salary of Kshs. 6,000, later Kshs. 8,000. The Grievant was suspended in May 2009 and effectively forced out of employment; after union intervention he was recalled but assigned to a bar without a kitchen, and the Respondent subsequently disowned him. Conciliation under Section 62 of the Labour Relations Act failed because the Respondent did not participate, and the dispute came to court. The Respondent filed no Statement of Reply and did not attend the hearing, which proceeded ex parte. Rika J held that an employer who keeps away from proceedings eases the employee's evidential burden: the presumption arises that no valid reason existed for termination and that the procedure was not fair. The Court found the termination unfair and awarded 10 months' salary (Kshs. 80,000) in compensation. The Court also allowed one month's notice pay (Kshs. 8,000) under sections 35 and 36 of the Employment Act, annual leave pay of Kshs. 24,000 for three years under section 28, service pay recomputed at Kshs. 13,846 (15 days' salary per completed year under section 35(5) and the Regulation of Wages [Hotel and Catering Trades] Order, no N.S.S.F or other scheme having been shown), and unpaid salaries for May and June 2009 at Kshs. 16,000 under sections 17 and 18. However, the overtime claims on public holidays and normal hours were declined for want of substantiation. A certificate of service was ordered issued forthwith as a statutory right under section 51. Total award: Kshs. 141,846, payable through the Claimant within 30 days, with costs to the Claimant.

Key legal issues

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01

Evidential threshold where employer fails to participate

Holding

The employer's absence from proceedings eases the employee's evidential burden; unchallenged evidence of employment and termination suffices, and the presumption arises that termination lacked valid reason and fair procedure

Reasoning

The Court held that where the employer keeps away, the employee need only show employment, that the employer initiated termination, and that compensation/terminal benefits are merited. The absence of a Statement of Reply and non-attendance meant the Grievant's oral evidence was unchallenged, and the employer failed to discharge its duty to justify the termination.

p. 2
02

Unfair termination compensation

Holding

Termination was unfair; the Grievant was awarded 10 months' salary (Kshs. 80,000) as compensation

Reasoning

Nothing demonstrated that termination was founded on substantive justification or fair procedure, and the party bearing that burden was absent. The Court exercised its discretion to award 10 months' salary at Kshs. 8,000 per month.

p. 2
03

Terminal benefits: notice, leave, service pay, unpaid salaries

Holding

One month notice pay (Kshs. 8,000) under sections 35 and 36; annual leave pay of Kshs. 24,000 under section 28; service pay recomputed at Kshs. 13,846 under section 35(5) and the Regulation of Wages [Hotel and Catering Trades] Order; unpaid salaries for May and June 2009 at Kshs. 16,000 under sections 17 and 18

Reasoning

The Court applied statutory entitlements: notice or notice pay for employees paid at intervals exceeding one month; 21 working days' leave per 12 consecutive months of service; 15 days' salary per completed year of service in the absence of N.S.S.F or other schemes, per the Hotel and Catering Trades Order; and statutory protection of wages, withholding of which is a criminal offence.

p. 3
04

Overtime claims

Holding

Overtime claims (public holidays and normal overtime) were declined for want of substantiation

Reasoning

The Grievant's evidence and counsel's argument did not properly elaborate the overtime claims; figures, hours and days were presented without a credible computational basis. The Court criticised the tendency to throw all holidays, hours and years at the Court without a defensible system of calculation.

p. 3
05

Certificate of service

Holding

Certificate of service ordered issued forthwith as a statutory right under section 51 of the Employment Act 2007

Reasoning

The certificate is a legal obligation of the employer and a legal right of the employee under section 51, and should not be entangled in day-to-day disputes between employer and employee; it must issue regardless of the manner of exit.

p. 3

Legal principles established

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  • In any termination, it is the employer's duty to show valid reasons for the termination and that the process was fair; where the employer keeps away from the proceedings, the presumption is that no valid reason exists and the procedure was not fair
  • A certificate of service is a legal obligation of the employer and legal right of the employee under section 51 of the Employment Act, issued regardless of the manner of the employee's exit
  • Claimants of overtime pay must present a mathematically defensible, legally justifiable and factually credible system of overtime pay

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay the Grievant compensation at 10 months' salary of Kshs. 80,000; 1 month notice pay at Kshs. 8,000; annual leave pay at Kshs. 24,000; service pay at Kshs. 13,846; and salaries for May and June 2009 at Kshs. 16,000, totalling Kshs. 141,846
  3. 3.Full amount of Kshs. 141,846 to be paid by the Respondent to the Grievant through the Claimant within 30 days of delivery of the Award
  4. 4.Certificate of service to be released to the Grievant by the Respondent forthwith
  5. 5.Costs to the Claimant

Authorities

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Legislation

  • Labour Relations ActSection 62
  • Employment Act 2007Sections 28, 35, 36, 35(5), 17, 18, 51
  • Regulation of Wages [Hotel and Catering Trades] Order
Jurisdiction invoked
Labour Relations Act No. 14 of 2007 and Employment Act 2007 (dispute referred after failed conciliation under Section 62 of the Labour Relations Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA UNION OF DOMESTIC, HOTELS EDUCATIONAL INSTITUTIONS, HOSPITALS AND ALLIED WORKERSCHARLES WAITHAKA GOKO t/a APPLE BEES PUB AND RESTAURANT [2013] KEELRC 440 (KLR)", Case Analysis (2013). Cause 2078 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/440/eng@2013-04-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.