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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 1343 (KLR)

Joel Emoding Khaoya v Eldoret Packers Limited [2014] KEELRC 1343 (KLR)

Employment and Labour Relations Court
17 October 2014
BOBYRAM ONGAYA
945 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent as a lorry driver from 30.01.2007, sued for a declaration that his termination on 1/2 December 2013 was unlawful and unfair, plus one month's salary in lieu of notice, leave pay for 2012, twelve months' compensation under section 49(1)(c) of the Employment Act, 2007, underpayments for seven years, overtime between 30.01.2007 and 2.12.2013, and a certificate of service. The respondent sought dismissal of the suit. The respondent's case was that the claimant was dismissed following reported high fuel consumption by his lorry and failure to refund Kshs.195,000 collected from a client, and after he refused to attend a disciplinary hearing to which he had been invited by letter dated 16.09.2013. The court found the claimant's account of the termination contradictory and unreliable, and held that since he had been invited to a disciplinary hearing but failed to attend, he was accorded the due process contemplated by section 41 of the Employment Act; the termination was therefore not unfair. The declaration, notice pay and twelve months' compensation were refused, and the overtime claim failed for want of proof of the specific amounts. However, the claimant established unpaid 2012 leave (Kshs.14,350) and, as the underpayment claim of Kshs.445,642.19 based on the wage orders was unrebutted, he was awarded Kshs.459,992.19 with interest from filing, plus a certificate of service, and 75% of his costs.

Key legal issues

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01

Whether the claimant's termination was unfair

Holding

Termination was fair because the claimant was invited to a disciplinary hearing and failed to attend, satisfying section 41 of the Employment Act, 2007

Reasoning

The court found the claimant's evidence contradictory and unreliable as to the date and manner of termination. On the respondent's uncontradicted testimony, the claimant was invited by letter dated 16.09.2013 to a disciplinary hearing, failed to attend, and was dismissed. That process satisfied the requirements of section 41 of the Employment Act, so the termination was not unfair.

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02

Entitlement to remedies

Holding

Leave pay of Kshs.14,350 for 2012 and certificate of service awarded; underpayments awarded as unrebutted; notice pay, 12 months' compensation and overtime refused

Reasoning

Having found the termination not unfair, the court declined the declaration, notice pay and 12 months' compensation. Leave for 2012 was established as it was not taken. The underpayment claim based on wage orders was unrebutted and thus allowed. The overtime claim failed because the specific amounts and basis were not established.

p. 2

Legal principles established

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  • An employee invited to a disciplinary hearing who fails to attend and is terminated has been accorded the due process envisaged under section 41 of the Employment Act, 2007
  • Contradictory evidence by a claimant is unreliable and cannot be trusted
  • An unrebuted claim for underpayments based on the relevant wage orders is established

Court orders

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  1. 1.The respondent to pay the claimant Kshs. 459,992.19 by 1.11.2014 failing interest at court rates payable from the date of filing the suit, 03.01.2014, till the date of full payment
  2. 2.The respondent to deliver to the claimant the certificate of service by 1.11.2014
  3. 3.The respondent to pay 75% of the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 49(1)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Joel Emoding Khaoya v Eldoret Packers Limited [2014] KEELRC 1343 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1343/eng@2014-10-17

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