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ELRCDismissedCause No 1490 of 2012· [2013] KEELRC 829 (KLR)

Anthony Kivulu Kiilu v Athi River Steel Plant Limited [2013] KEELRC 829 (KLR)

Industrial Court of Kenya
30 September 2013
LNLINNET NDOLO
1,023 words in judgment
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The bottom line

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A Kenyan court dismissed an unfair termination claim because the employee could not prove his case with evidence like NSSF records and attendance at conciliation.

What this practically means

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Executive summary

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The Claimant, employed as a Mason, sued the Respondent for unfair termination of employment, seeking a declaration, one month's salary in lieu of notice, pay in lieu of three years' leave, service pay at 18 days per completed year, and twelve months' salary as compensation. He claimed he was ordered to surrender company property and leave after being unable to produce written work records whose custody he said lay with the Respondent. The Respondent contended the Claimant was responsible for keeping his own daily work records against set targets, that he was summoned over failure to meet targets, and that after a dispute conciliated by a Labour Officer he absented himself from work and was later paid all terminal dues. The Court first resolved the employment start date, adopting 1st January 2009 as indicated in the Claimant's NSSF Statement of Account in the absence of other documentary evidence. Applying section 47(5) of the Employment Act, 2007, the Court held the burden of proving unfair termination rests on the employee and does not shift. Finding that the Claimant failed to resume duty even after resolution of the dispute before a Labour Officer, and that he did not controvert the Respondent's account, the Court held no case of unfair termination was made out. The leave pay claim failed on the leave payment records produced, and service pay was denied because the Claimant contributed to NSSF. The entire claim was dismissed with each party bearing their own costs. Judgment delivered on 30th September 2013 by Linnet Ndolo, Judge.

Key legal issues

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01

Effective date of employment

Holding

In the absence of further documentary evidence, the effective date of employment is the date indicated in the NSSF Provisional Statement of Account (1st January 2009), not the date the Claimant alleged (September 2004)

Reasoning

The Claimant asserted employment from September 2004, but the NSSF Provisional Statement of Account submitted by him indicated 1st January 2009. With no other documentary evidence to support the earlier date, the Court adopted the NSSF date as the effective date of employment.

p. 2
02

Unfair termination

Holding

The claim fails because the Claimant did not prove unfair termination; he failed to resume duty after a dispute was resolved in the presence of a Labour Officer

Reasoning

Under section 47(5) of the Employment Act, 2007, the employee bears the burden of proving unfair termination while the employer bears the burden of justifying the grounds. The Respondent alleged the Claimant declined set targets and absconded after a conciliation meeting with a Labour Officer; the Claimant did not controvert this account, so no case of unfair termination was established.

p. 2
03

Leave pay and service pay

Holding

Leave pay claim fails as leave pay was paid for the relevant years; service pay is not payable to a contributing NSSF member

Reasoning

The Respondent produced leave pay records showing payment in 2009, 2010 and 2011, which covers the period of employment found (from 1st January 2009). The Claimant was a contributing NSSF member and therefore statutorily not entitled to service pay.

p. 3

Legal principles established

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  • The burden of proving unfair termination rests on the employee while the burden of justifying the grounds for termination rests on the employer, and these burdens do not shift

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
Jurisdiction invoked
Industrial Court of Kenya jurisdiction over employment and labour relations disputes (Cause No 1490 of 2012, unfair termination claim under the 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, "Anthony Kivulu Kiilu v Athi River Steel Plant Limited [2013] KEELRC 829 (KLR)", Case Analysis (2013). Cause No 1490 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/829/eng@2013-09-30

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