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ELRCOtherCause Number 329 of 2013· [2014] KEELRC 701 (KLR)

Shadrack Mulinge Muia v Polyflex Industries Limited [2014] KEELRC 701 (KLR)

Industrial Court of Kenya
22 January 2014
JRJames Rika
1,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court found no dismissal happened and ordered the worker back to his job instead of paying compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a general worker from around August 2008 at a daily rate, claimed he was summarily dismissed in mid-March 2012 after sustaining a work-related injury on 8th March 2012 when his arm was broken by a machine roller. He sought a declaration of unlawful termination, one month's salary in lieu of notice, annual leave for four years, and twelve months' salary as compensation for unfair termination, plus costs. The Respondent denied terminating him, asserting he acted contrary to instructions when injured, was treated at Coptic Hospital (with the Respondent clearing a bill exceeding his insurance cover), and after collecting his medical records on 20th March 2012 for a scheduled review, he never returned to work - he deserted. The Respondent's Human Resource Manager, Sylvanus Ouko, conceded the Claimant worked casually for four years without a written contract, which he admitted amounted to unfair labour practice, and confirmed the Respondent was ready to reinstate him and had processed his work injury claim. The Court accepted the Respondent's evidence, holding there was no letter of termination and no clear instructions of termination; the Claimant had conflated his work injury claim with an alleged termination. The Court declined to award terminal benefits or compensation where the employer was willing to have the Claimant back. It ordered the Claimant to report back to work within 30 days, treating the years out of service as unpaid leave, with no order on costs.

Key legal issues

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01

Whether the Claimant's employment was terminated

Holding

The Court found no termination occurred; the Respondent's evidence that the Claimant deserted after collecting his medical records on 20th March 2012 was accepted

Reasoning

The Respondent's Human Resource Manager testified categorically that the Respondent did not terminate the Claimant and was ready to have him back. The Claimant gave no evidence of a dismissal letter or instructions that his services were no longer required. The Claimant appeared to conflate his work injury claim with his claim for alleged termination. The Court therefore declined to intervene and instead directed the Claimant to resume work.

p. 3

Legal principles established

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  • An employer who did not issue a letter of termination or clear instructions of termination cannot be found to have terminated the employment relationship
  • A Court will not impose a decision ending an employment relationship and award terminal benefits where there is no evidence of termination and the employer is ready to have the employee back to work
  • Failure to avail a written contract and employment of a worker on casual terms for four years amounts to unfair labour practice

Court orders

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  1. 1.The Claimant shall report back to work for assignment of duty within 30 days of the delivery of this Award
  2. 2.The years out of service shall be treated as unpaid leave
  3. 3.No order on the costs
Jurisdiction invoked
The Industrial Court's jurisdiction over disputes between employers and employees (Issue in Dispute: Unfair and Unlawful Termination)

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, "Shadrack Mulinge Muia v Polyflex Industries Limited [2014] KEELRC 701 (KLR)", Case Analysis (2014). Cause Number 329 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/701/eng@2014-01-22

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