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ELRCPartially AllowedNot stated in judgment· [2013] KEELRC 643 (KLR)

Kenya Union Of Domestic, Hotels, Educational Institution, Hospitals And Allied Workers v Almano Special School [2013] KEELRC 643 (KLR)

Industrial Court of Kenya
23 July 2013
ANAbuodha J. N
1,207 words in judgment
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The bottom line

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A Kenyan employment court dismissed most of a worker's claims for lack of evidence, but still awarded one month's pay because the employer skipped proper disciplinary procedure.

What this practically means

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Executive summary

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The claimant, a groundsman employed on 11th August 1996 at Kshs.1,200 per month, sued through his Union for notice, service gratuity for ten years, salary for nine days worked in 2006, untaken leave, public holidays worked, house allowance, underpayment of wages and twelve months' compensation for loss of employment, alleging his services were terminated by letter on 1st December 2005 without reason. The respondent, while not denying the employment, averred the termination was for gross misconduct after several warnings, and challenged the Union's capacity to bring the claim. At the hearing the claimant testified he received only one verbal warning; Sister Jane Ngacha testified for the respondent and produced the appointment letter, two warning letters, a muster roll showing payment of December 2005 salary, and records of NSSF and NHIF contributions. Applying the balance-of-probability standard and section 47(5) of the Employment Act, the court found the claimant had failed to discharge his burden of proving unfair termination, his claim being almost a bare allegation. However, the respondent also failed to demonstrate compliance with section 41(1) of the Employment Act, which requires an employer to explain the reasons for termination to the employee in a language he understands and allow a representative; the termination was therefore procedurally unlawful even if substantively deserved. The court dismissed the claim except that it annulled the one month's notice and awarded the claimant one month's salary in lieu of notice. Judgment was delivered at Nyeri on 23rd July 2013 by Abuodha J. N.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

The claimant failed to discharge the burden of proving unfair termination or wrongful dismissal

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The claimant produced nothing beyond a bare allegation and called no additional evidence, while the respondent produced the appointment letter, warning letters, muster roll and payment records. The claim therefore failed on evidential grounds except as regards notice.

p. 2
02

Procedural fairness under section 41(1) of the Employment Act

Holding

The respondent failed to show it complied with section 41(1) before terminating for misconduct, rendering the termination unlawful

Reasoning

Although the respondent reasonably showed the termination was for misconduct after warnings, nothing in the pleadings or evidence showed that the claimant was explained the reasons in a language he understood or allowed a representative as required by section 41(1). The termination was therefore procedurally flawed even if substantively deserved.

p. 3
03

Remedy for unlawful notice

Holding

The notice of termination was annulled and one month's salary in lieu awarded

Reasoning

The written contract permitted termination on one month's notice or payment in lieu. Since the notice was issued contrary to section 41(1), the court annulled it and awarded one month's salary in lieu, the only head of claim that succeeded.

p. 3

Legal principles established

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  • A person who seeks a determination in his favour must provide sufficient evidence to persuade the court that what is claimed more probably took place than not (balance of probability standard).
  • Under section 47(5) of the Employment Act the burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer.
  • Termination on grounds of misconduct without compliance with the procedural requirements of section 41(1) of the Employment Act is unlawful even if the grounds were deserved.

Court orders

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  1. 1.The claimant's case dismissed except to the extent that the respondent is liable to pay the claimant one month's salary in lieu of notice
  2. 2.The one month's notice of termination annulled and one month's salary in lieu awarded

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 41(1)
  • Employment Actsection 42(1)

Cases cited (1)

  • Patrick Nguthiru Gichuki -vs- David Denny
    Cause No. 22 of 2012 – Nyeri
Jurisdiction invoked
Reference of a trade dispute by the Union for resolution by the court

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 Institution, Hospitals And Allied Workers v Almano Special School [2013] KEELRC 643 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/643/eng@2013-07-23

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