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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 805 (KLR)

Anthony Ochieng Onyango v Lwala Mixed Sec. School & 2 others [2014] KEELRC 805 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
5 February 2014
HWHellen Wasilwa
1,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a watchman Ksh 95,596 for unfair dismissal and underpayment, ruling that employers without written contracts bear the burden of proving employment terms.

What this practically means

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Executive summary

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The claimant, Anthony Ochieng Onyango, filed a memorandum of claim in person on 7 June 2011 against Lwala Mixed Secondary School and two board officials, alleging unfair summary dismissal, underpayment contrary to statutory wages orders, unpaid overtime, denial of annual leave and denial of weekly rest days, and quantifying his claim at Ksh 401,443.60. He said he was employed in January 2000 as a night watchman at Ksh 1,500 per month, rising to Ksh 2,500, worked 12 hours a day without overtime, and was summarily dismissed on 31 July 2008 after writing a letter on behalf of fellow employees seeking wage adjustments. The respondents never entered appearance or filed a defence, and the matter proceeded to formal proof on 15 January 2014. The court, per Hellen Wasilwa J, found that a letter of dismissal proved the employment relationship despite the absence of a written contract, and that under Sections 9(2) and 10(7) of the Employment Act 2007 the burden of proving terms fell on the employer. The court held that the claimant was underpaid contrary to the wages orders and that his dismissal without a hearing breached Section 41, and that querying wages did not amount to gross misconduct. The leave and overtime claims failed for want of proof. Judgment was entered for Ksh 95,596.00, covering one month's salary in lieu of notice, underpayment arrears, service gratuity and twelve months' compensation, plus a certificate of service and costs against the respondent.

Key legal issues

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01

Fairness of the summary dismissal

Holding

The summary dismissal was unfair because the claimant was never accorded a hearing, and the alleged misconduct (querying wages) did not amount to gross misconduct.

Reasoning

The court found the letter of dismissal in Appendix 4 proved an employment relationship despite absence of a written contract. Section 41 of the Employment Act 2007 requires a hearing before dismissal. Since none took place, the dismissal was procedurally unfair. Substantively, pursuing a statutory right to proper wages cannot constitute gross misconduct, so the reason given did not justify summary dismissal. Compensation of 12 months' salary was awarded.

p. 2
02

Consequences of absence of a written contract

Holding

In the absence of a written contract produced by the employer, the court accepts the claimant's stated terms unless the employer proves otherwise.

Reasoning

Relying on Sections 9(2) and 10(7) of the Employment Act 2007, the court held that the employer bears responsibility for drawing up written particulars and bears the burden of proving or disproving alleged terms where none exist. The respondents having not entered appearance or filed a defence, the court assumed the claimant's account of the employment was the truth.

p. 2
03

Underpayment against statutory minimum wages

Holding

The claimant was underpaid contrary to the minimum wages stipulated in the wages orders.

Reasoning

The court found as a fact that the claimant, employed as a night watchman from January 2000 at Ksh 1,500 rising to Ksh 2,500 per month, was paid below the statutory minimum rates set under Legal Notices No. 42 of 2005 and No. 38 of 2006. Arrears were computed for the periods May 2005 to May 2006 and May 2006 to November 2008 and awarded as damages.

p. 2
04

Overtime, leave and weekly rest claims

Holding

The overtime claim failed for want of proof, as did the leave claim; weekly rest days were not separately determined.

Reasoning

Although the claimant asserted he worked 12 hours daily without overtime and never took leave, the court found no proof that he applied for and was denied leave, so that claim could not stand. The overtime claim was likewise found not proved. These heads were therefore excluded from the quantum awarded.

p. 3

Legal principles established

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  • Where the employer fails to produce a written contract of employment, the burden of proving or disproving an alleged term of employment lies on the employer, and the court may accept the claimant's account of the terms.
  • Dismissal without a hearing offends Section 41 of the Employment Act 2007, and querying one's right to proper wages does not amount to gross misconduct justifying summary dismissal.

Court orders

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  1. 1.1 month salary in lieu of notice based on minimum wage (Ksh 16,488)
  2. 2.Underpayment arrears between May 2005 and May 2006 (Ksh 4,056) and between May 2006 and November 2008 (Ksh 20,956), total Ksh 24,232 with other heads
  3. 3.Service gratuity at 15 days for each year worked (Ksh 2,056 x 8 = Ksh 48,672 per computation)
  4. 4.12 months salary as compensation for unlawful termination (Ksh 26,380 per computation)
  5. 5.Total judgment of Ksh 95,596.00 entered for the claimant
  6. 6.Claimant to be issued with a certificate of service
  7. 7.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 40(1), (2), (4)
  • Employment Act 2007Section 46(h)
  • Employment Act 2007Section 9(2)
  • Employment Act 2007Section 10(7)
  • Employment Act 2007Section 27(2)
  • Employment Act 2007Section 41
  • Labour Institutions Act 2007Section 48(1)(a) and (b)
  • Regulation of Wages and Conditions of Employment (General Order) Legal Notice No. 42 of 2005General Order
  • Legal Notice No. 38 of 2006Regulation of Wages and Conditions of Employment (General Order)
  • Legal Notice No. 8 of 1988 - Regulation of Wages (Protective Security Services Order)Order No. 7(a), (b), Order No. 8, Order No. 9(2), Order No. 10
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act 2007 and Labour Institutions Act 2007 (specific enabling provision not cited in judgment)

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, "Anthony Ochieng Onyango v Lwala Mixed Sec. School & 2 others [2014] KEELRC 805 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/805/eng@2014-02-05

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