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ELRCPartially AllowedCause No 37 of 2014· [2014] KEELRC 81 (KLR)

John Odhiambo Abila v Eldoret Packers Ltd [2014] KEELRC 81 (KLR)

Employment and Labour Relations Court
14 November 2014
2,310 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who cannot prove an employee received a show-cause notice before dismissal will likely lose an unfair termination case.

What this practically means

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Executive summary

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The Claimant, employed as a driver by the Respondent from 1 November 2003, alleged that his services were verbally and unfairly terminated on 20 February 2011 after he declined to drive a trailer with mechanical problems, and claimed notice pay, accrued leave from 2003 to 2007, underpayments, overtime, terminal dues and a certificate of service, totalling nearly Kshs 1,000,000/-. The Respondent contended that the Claimant absconded from work from 11 February 2011, that a show-cause notice and disciplinary hearing were issued, and that a decision to dismiss was taken on 20 March 2011. The court found the Respondent's versions inconsistent but, relying on the disciplinary minutes, held the Claimant was dismissed for alleged absconding. On procedural fairness, since the delivery book evidencing service of the notice was not produced and the notice lacked the Claimant's contact details, the court found section 41 of the Employment Act, 2007 was not complied with and the termination procedurally unfair; it found it unnecessary to examine sections 43 and 45. The court awarded one month's salary in lieu of notice (Kshs 14,300/-), accrued leave (Kshs 34,569/-), five months' gross wages as compensation (Kshs 71,500/-) and underpayments for 2004-2008 (Kshs 30,240/-), totalling Kshs 150,609/-, after classifying the Claimant as a driver of a medium sized commercial vehicle under the Regulation of Wages (General) (Amendment) Order. Overtime and unpleaded salary arrears were declined, the Respondent was ordered to issue a certificate of service, and the Claimant was awarded costs.

Key legal issues

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01

Whether there was a termination at all

Holding

The minutes of the disciplinary hearing showed a decision to dismiss, so the separation was a dismissal on the ground of alleged desertion/absconding

Reasoning

The Respondent gave inconsistent versions: first that the Claimant was not dismissed but absconded, then reference to a show-cause notice, a disciplinary hearing and dismissal minutes. The court treated the minutes as decisive that the Respondent dismissed the Claimant for absconding from work.

p. 3
02

Procedural fairness under section 41 of the Employment Act, 2007

Holding

Termination was procedurally unfair because the Respondent failed to prove service of the notice to explain

Reasoning

Absenteeism is a misconduct ground requiring section 41 compliance. The delivery book proving service of the notice was not produced despite being said to be available, and the notice bore no address. These failures left the court unable to find that the Claimant was informed of the reasons or heard.

p. 3
03

Underpayments - classification of the Claimant's occupation

Holding

The Claimant drove a medium sized commercial vehicle (canter, 3510 kgs), and prescribed minimum wages for that category applied; he was underpaid only between 2004 and 2008

Reasoning

The court used the Claimant's driving licence and the Respondent's uncontroverted testimony about the canter KAQ 525P to fix his vehicle class under the Regulation of Wages (General) (Amendment) Order, then compared actual earnings with the prescribed minimum wage year by year under the relevant Legal Notices, finding underpayments only in certain periods.

p. 4
04

Compensation for unfair termination

Holding

Equivalent of 5 months gross wages awarded, assessed at Kshs 71,500/- based on wage at separation

Reasoning

The remedy under the Employment Act is discretionary, capped at twelve months gross wages. The court considered the length of service of about 7 years and that the Claimant had secured alternative employment, and found 5 months' gross wages just and reasonable.

p. 4

Legal principles established

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  • Before terminating an employee for misconduct, the employer must inform the employee of the reasons and give a chance to make representations under section 41 of the Employment Act, 2007
  • Where an employer fails to produce a delivery book proving service of a show-cause notice and does not explain omission of the employee's contact details, the court may find procedural fairness was not complied with
  • A Certificate of Service is a statutory right of the employee

Court orders

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  1. 1.One month salary in lieu of notice - Kshs 14,300/-
  2. 2.Accrued leave - Kshs 34,569/-
  3. 3.5 months gross wages as compensation for unfair termination - Kshs 71,500/-
  4. 4.Underpayments 2004-2008 - Kshs 30,240/-
  5. 5.Total award of Kshs 150,609/- to be paid by the Respondent to the Claimant
  6. 6.The Respondent to issue the Claimant a Certificate of Service
  7. 7.The claim for overtime is dismissed
  8. 8.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007sections 35 and 36
  • Employment Act, 2007sections 43 and 45
  • Regulation of Wages (General) (Amendment) Orderdriver categories
  • Legal Notice No. 48 of 2003prescribed minimum wage
  • Legal Notice No. 36 of 2004prescribed minimum wage
  • Legal Notice No. 42 of 2005prescribed minimum wage
  • Legal Notice No. 38 of 2006prescribed minimum wage
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act; Employment Act, 2007 invoked throughout)

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, "John Odhiambo Abila v Eldoret Packers Ltd [2014] KEELRC 81 (KLR)", Case Analysis (2014). Cause No 37 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/81/eng@2014-11-14

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