Amalgamated Union of Kenya Metal Workers v Parklands Motors Limited [2014] KEELRC 825 (KLR)

The grievant produced a 2000 letter from Parklands Motors declining a salary increase, which the Respondent never denied or explained. The employer, obligated to keep employment records for five years after termination, adduced no evidence of how the 2000 contract ended or of accepting the alleged 2007 application. The Respondent's claim that the grievant was employed from 2007 was therefore uncontroverted.

The Respondent admitted in its Response that the grievant was found stealing and quit voluntarily and was paid off, repeated in its final submissions, though it pleaded elsewhere that it was unaware of the theft allegation and that the exit was due to ill health. The court relied on the admission; no evidence of any payment to the grievant was produced. The claimant's union-activity allegation was unproved.

Neither party tendered evidence: the claimant produced nothing to support the union-victimisation plea, and the Respondent called no witness to prove theft, ill health or voluntary resignation. There was no evidence of a hearing before termination nor of voluntary exit. Applying the rule that he who alleges must prove, the claim failed.

The Respondent's admission that the employment was terminated entitled the grievant to notice pay. Service pay was due under sections 35(5) and 35(6) of the Employment Act since the grievant was not in NSSF or any retirement scheme, and the Respondent did not controvert the claim. A certificate of service is a statutory entitlement under section 51. The remaining heads lacked proof.