Leandro Wabwire v Shengli Engineering Construction Group Ltd [2013] KEELRC 896 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved a valid reason for terminating the Claimant's employment
The Respondent failed to demonstrate a valid reason; the allegation that the Claimant absconded duty was not proved, so the termination was unfair under Sections 43 and 45 of the Employment Act
The burden under Section 43(1) lies on the employer to prove the reason for termination. The Respondent asserted that the Claimant absconded after being summoned to explain his failure to work on 21st September 2011, but its witness was not at the site on that date, and there was no evidence of any communication requiring the Claimant to report back or collect dues. The allegation of absconding therefore remained unproved.
Whether the Respondent observed fair procedure in terminating the employment
The Respondent did not observe the procedural requirements set out in Section 41 of the Employment Act, 2007; the Claimant was not given an opportunity to defend himself
Section 45(2)(c) requires that termination be in accordance with fair procedure. The Claimant testified he was ejected from site on allegations of inciting workers and verbally dismissed without being given an opportunity to defend himself. The court found no observance of Section 41's procedural requirements, attracting an award of compensation for unfair termination.
What salary figure should be adopted where the Claimant's salary is in contention
The figure of Kshs. 38,000 stated in paragraph 3 of the Respondent's own Defence was adopted as the Claimant's salary for purposes of the claim
The parties disputed the Claimant's salary at termination. The court found that the Respondent itself had pleaded Kshs. 38,000 inclusive of allowances in its Defence and saw no reason to depart from that admission, adopting it for computation of all awards including compensation, notice pay and leave.
Legal principles established
#- In any claim arising out of termination of a contract, the employer must prove the reasons for termination, failing which the termination is deemed unfair
- Unverified averments and uncorroborated testimony of a witness not present at the material time will not discharge the employer's burden of proving a valid reason for termination
Court orders
#- 1.Six months' salary in compensation for unfair termination of employment (Kshs. 228,000)
- 2.One month's salary in lieu of notice (Kshs. 38,000)
- 3.Pay for 16th to 22nd September 2011, 7 days (Kshs. 8,867)
- 4.Pay in lieu of leave (21+1.75) days (Kshs. 28,817)
- 5.Total award of Kshs. 303,684
- 6.Respondent directed to issue the Claimant with a certificate of service
- 7.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court of Kenya over a claim for unfair termination of employment and terminal dues
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leandro Wabwire v Shengli Engineering Construction Group Ltd [2013] KEELRC 896 (KLR)", Case Analysis (2013). Cause No 1919 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/896/eng@2013-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.