Anastas Fukwo Lusweti v Navisat Telematics Limited [2014] KEELRC 248 (KLR)

The Respondent alleged the Claimant had been convicted of carjacking and deserted work, but did not attend the hearing or support its assertions with evidence. The Claimant's unchallenged evidence was that he was terminated without warning, notice or reason. The Court found the employer disregarded the procedural and substantive fairness requirements of the Employment Act, and awarded the maximum-scale compensation of 3 months' salary under Section 49.

The pay slips captured only basic salary of Kshs. 35,196 with no house rent allowance, and the employer did not provide housing at or near the workplace. Section 31 of the Employment Act therefore obliged the employer to pay house rent allowance in addition to basic salary, computed at 15% of the basic salary for the 8 months of service.

The Respondent asserted in its Statement of Response that the Claimant deserted work around 15th January 2011 after being asked to prove his acquittal of a carjacking charge. However, the Respondent did not attend the hearing and adduced no evidence. In the absence of proof of desertion, the Claimant's unchallenged claim for the unpaid balance of his January salary was granted.

Under Section 51 of the Employment Act 2007, every employee with at least 4 weeks of service is entitled to a certificate of service. The Claimant worked 8 months, so the entitlement was established and the Respondent was ordered to release the certificate immediately.

The Claimant sought 2 months' notice pay but produced no contract, wage order, collective agreement or policy justifying that figure. The Court applied the statutory default in Section 35(1)(c) and 36 of the Employment Act 2007, awarding one month's basic salary of Kshs. 35,196 in lieu of notice.