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ELRCDismissedNot stated in the judgment· [2013] KEELRC 899 (KLR)

Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers v Mary Immaculate Primary School [2013] KEELRC 899 (KLR)

Employment and Labour Relations Court
26 November 2013
NANELSON ABUODHA
1,412 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Three school workers who claimed unfair dismissal lost because they couldn't disprove the employer's documented reasons for firing them for misconduct.

What this practically means

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Executive summary

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Three claimants sued their former employer, a school, alleging unlawful and unfair termination of employment. Jane Wathoko Migwi, employed as a house mother in 2007, Michael Mwangi Ndungu, a cook from 2001, and John Karuga Kamau, a cook from 2007, claimed they were verbally terminated between 2008 and September 2008 because they joined a trade union, and that they were never issued appointment letters. A fourth claimant, Jane Wanjiku Gachau, withdrew her claim at trial for want of prosecution. The respondent denied the claims, asserting the claimants were issued appointment letters and were summarily dismissed for gross misconduct - neglect of duty, theft of property, and abusive conduct towards co-workers - and that their dues were paid. The respondent's witness, Sister Anne Marie Oduya, a head teacher, testified that each dismissal was justified and that leave entitlements were covered by school holidays. Applying section 47(5) of the Employment Act, the court held the employee bears the burden of proving unfair termination while the employer must justify the grounds. The court found the claimants' denial of written contracts unhelpful, since the Act recognises oral contracts, and held they failed to refute the exhibited termination letters. The respondent, by contrast, demonstrated lawful reasons for summary dismissal. The claim was dismissed with costs on 26th November 2013 by Nelson Abuodha J at Nyeri.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

The claimants failed to discharge the burden of proving unfair termination; they merely alleged verbal dismissal without refuting the documentary evidence of summary dismissal

Reasoning

The claimants alleged verbal termination but the respondent exhibited termination letters stating reasons. The claimants produced no supplementary documents or evidence to sufficiently refute the allegations. The court found the respondent had reasonably demonstrated lawful reasons to summarily dismiss the claimants.

p. 3
02

Existence of oral contract of employment

Holding

Employment contracts may be oral; denial of written appointment letters does not negate the presumption of an employment relationship

Reasoning

Section 8 of the Employment Act applies to both oral and written contracts. Although section 9 requires contracts exceeding three months to be in writing, absence of a written contract does not negate the presumption of existence of a contract. The court found the claimants' denial of appointment letters unhelpful, particularly as the respondent exhibited termination letters.

p. 3
03

Lawfulness of summary dismissal

Holding

The respondent demonstrated valid and justified reasons for summary dismissal - neglect of duty, theft, and abusive conduct - so no pay in lieu of notice was due

Reasoning

The respondent's witness testified that each claimant was summarily dismissed for specific misconduct: Jane for absenting herself overnight, Michael for theft following investigations and prior warnings, and John for abusive conduct and neglect of duty as a gate-keeper. The respondent exhibited dismissal letters for each claimant.

p. 3

Legal principles established

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  • In unfair termination and wrongful dismissal complaints, the employee bears the burden of proving that the termination was unfair, while the employer bears the burden of justifying the grounds for termination
  • A contract of employment may be oral; absence of a written contract does not negate the presumption of existence of a contract in appropriate cases, though contracts exceeding three months are required to be in writing

Court orders

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  1. 1.The claim fails and is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 8
  • Employment Actsection 9
Jurisdiction invoked
Not expressly stated; jurisdiction exercised under the Employment Act (first-instance ELRC employment claim)

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 Workers v Mary Immaculate Primary School [2013] KEELRC 899 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/899/eng@2013-11-26

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