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ELRCDismissedCause No 1637 of 2011· [2014] KEELRC 1166 (KLR)

Timothy Wanderi v Bata Shoe Company (Kenya) Limited & another [2014] KEELRC 1166 (KLR)

Industrial Court of Kenya
11 June 2014
MBMbaru
2,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Industrial Court dismissed a Kenyan worker's unfair termination claim because his unexplained absence from work was desertion, not dismissal by the employer.

What this practically means

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Executive summary

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The claimant, Timothy Wanderi, sued Bata Shoe Company (Kenya) Limited and Fast Truck Management Services Limited for wrongful termination and non-payment of terminal dues, claiming he was employed as a mechanical engineer at Bata's Limuru factory from August 2007 at a daily rate of Kshs.290 paid fortnightly by Fast Truck, and was dismissed on 8th September 2010 without notice or hearing. He sought one month's notice pay, gratuity, leave dues for two years, twelve months' compensation and a certificate of service, totalling Kshs.143,640. Bata denied employing the claimant, asserting it outsourced manpower services to Fast Truck under a contract for services. Fast Truck denied the claimant was in its employment, alleging instead that he deserted. Bata called its HRM, Mr Peter Giathi; Fast Truck called no witness. The court framed two issues: who terminated the claimant, and whether he was entitled to the remedies sought. Applying section 45(2) of the Employment Act, the court found the claimant failed to establish an employer-employee relationship with Bata or a termination by either respondent. His evidence showed he knew his salary came from Fast Truck, and that persons who directed him to leave were not shown to be authorised to do so. Critically, when directed by Mr Giathi to report back to his supervisor, he did not do so, and his departure amounted to desertion rather than termination. The court also emphasised that industrial disputes should first be resolved at the shop floor. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Who was the claimant's employer and who terminated him

Holding

The claimant failed to establish that Bata was his employer or that either respondent terminated him; his evidence suggested the departure was self-initiated after being told to leave by persons not shown to be authorised

Reasoning

The claimant's own evidence showed he knew his salary was paid by Fast Truck, he could not state with certainty who his employer was, and the two people who directed him to leave were not shown to have authority. He was directed by the Bata HRM to report back to his supervisor but did not do so. His conduct supported Bata's position that he was not their employee and Fast Truck's position that he deserted.

p. 4
02

Whether the claimant proved unfair termination under section 45(2) of the Employment Act

Holding

The claim failed; no termination by the employer was established, only desertion by the claimant

Reasoning

Section 45(2) places the burden on an employer to justify a termination as valid, fair and procedurally sound. However, the threshold question was whether a termination occurred at all. The court found the claimant left work without exhausting shop-floor grievance mechanisms and never returned, so no termination by either respondent was proved and the statutory protection was not engaged.

p. 4

Legal principles established

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  • An employer bears the burden of proving that a termination was for a valid and fair reason and followed fair procedure under section 45(2) of the Employment Act
  • Employees should first pursue grievance resolution at the shop floor before resorting to the court, absent matters requiring preservation or restraint
  • Where an employee abandons the workplace without following grievance channels, the departure may amount to desertion rather than termination

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment Actsection 45(2)
Jurisdiction invoked
Original jurisdiction of the Industrial Court over labour disputes (the judgment notes 'the Industrial Court has the original jurisdiction to hear labour claims')

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, "Timothy Wanderi v Bata Shoe Company (Kenya) Limited & another [2014] KEELRC 1166 (KLR)", Case Analysis (2014). Cause No 1637 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1166/eng@2014-06-11

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