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ELRCPartially AllowedCause No 73 of 2013· [2013] KEELRC 700 (KLR)

James Odero Mwanika v N. M. Shah [2013] KEELRC 700 (KLR)

Industrial Court (Employment and Labour Relations Court)
12 July 2013
BOBYRAM ONGAYA
1,475 words in judgment
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The bottom line

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A Kenyan court ruled a labourer was unfairly dismissed verbally, because the employer skipped the required disciplinary hearing, and awarded him compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a general labourer from 1.07.2009, sued for unpaid March 2013 wages, notice pay, prorate leave, overtime, twelve months' compensation for unfair termination, a letter of termination and a certificate of service. The respondent denied terminating the claimant, asserting that the claimant walked away after a performance meeting on 14.03.2013 and thereafter absented himself. The court framed three issues: whether the employment was verbally terminated, whether the termination was fair, and the entitlement to other remedies. On the first issue, the court reasoned that although the alleged poor performance and subsequent absence amounted to sufficient grounds for disciplinary action under section 41 of the Employment Act, 2007, the respondent never invoked that authority, lending credence to the claimant's evidence that he was orally dismissed. Applying its own prior decision in Malachi Ochieng Pire v Rift Valley Agencies, the court held that the employment was verbally terminated on 14.03.2013. The termination was found procedurally unfair for want of notice and hearing, attracting six months' salary as compensation (Kshs.57,270.00). The undisputed March wages (Kshs.4,454.80), notice pay (Kshs.9,545.00) and prorate leave (Kshs.1,909.20) were awarded; the overtime claim of Kshs.77,371.20 failed for want of proof, and the claimant's admitted debt of Kshs.6,000.00 was deducted, yielding a net award of Kshs.67,179.00 payable by 1.09.2013 with interest in default. The respondent was also ordered to deliver a certificate of service under section 51 and to pay the costs of the case.

Key legal issues

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01

Whether the employment was verbally terminated

Holding

The employment was verbally terminated on the evening of 14.03.2013

Reasoning

Poor performance accusations and subsequent alleged absence from duty were sufficient grounds for the employer to initiate disciplinary action under section 41 of the Employment Act, 2007. The respondent's failure to invoke that statutory authority, despite the alleged gross misconduct, made his account that the claimant simply walked away untrustworthy and corroborated the claimant's evidence that he was told 'Hakuna Kazi' three times.

p. 2
02

Whether the termination was fair

Holding

The termination was unfair; compensation of six months' salary awarded

Reasoning

The claimant was denied notice of poor performance and a hearing as envisaged in section 41 of the Employment Act, 2007. Weighing the circumstances, including the cordial relationship evidenced by a friendly loan shortly before termination, the court awarded six months' salary at the last monthly rate of Kshs.9,545.00 as compensation.

p. 3
03

Entitlement to notice pay, accrued wages, prorate leave and certificate of service

Holding

Notice pay, March wages and prorate leave awarded; certificate of service due under section 51

Reasoning

The 14 days' March wages and prorate leave were undisputed and awarded as prayed. Because termination was without the agreed one month notice, one month's salary in lieu was awarded. The certificate of service is a statutory entitlement under section 51 of the Employment Act, 2007, while the overtime claim failed for lack of proof.

p. 3

Legal principles established

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  • Where an employer raises poor performance or misconduct after termination without having invoked the section 41 disciplinary process, the benefit of doubt tilts in favour of the employee as to the genuine cause of termination
  • Failure by an employer to initiate disciplinary action under section 41 of the Employment Act, 2007 despite grounds for doing so lends credence to an employee's assertion of oral termination

Court orders

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  1. 1.The respondent to pay the claimant Kshs.67,179.00 by 1.09.2013 and in default to pay interest at court rates from the date of judgment till full payment
  2. 2.The respondent to pay costs of the case
  3. 3.The respondent to deliver to the claimant the certificate of service by 1.09.2013

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 51

Cases cited (1)

  • Malachi Ochieng Pire – Versus- Rift Valley Agencies, Industrial Cause No. 22 of 2013 at Nakuru
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

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, "James Odero Mwanika v N. M. Shah [2013] KEELRC 700 (KLR)", Case Analysis (2013). Cause No 73 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/700/eng@2013-07-12

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