Kenya National Private Security Workers Union v Kenya Kazi Services Limited [2014] KEELRC 1348 (KLR)
The bottom line
#A Kenyan court ruled an employer unfairly terminated a worker after failing to prove he had resigned, awarding him 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievant resigned
The grievant did not write a resignation letter; the respondent failed to prove the alleged resignation
The alleged resignation letter had 'ghostly characteristics' - the grievant denied writing it and was never shown it. RW1 admitted he realised on 14.07.2010 that he did not have the letter. Having become the respondent's property, the employer could not reasonably have parted with it without evidence. Under sections 43(1) and 47(5) of the Employment Act, the respondent had to prove the reason for termination and failed to do so.
Whether the termination was unfair
The termination was unfair under section 43 of the Employment Act because there was no genuine reason
Having found no proven reason for the termination - the alleged resignation being unsubstantiated - the court held the termination unfair. The grievant, a good worker, did not contribute to the termination in any manner, and the employer acted in breach of the confidence and trust expected between employer and employee.
Whether the claimant is entitled to remedies as prayed for
Reinstatement refused; compensation of 12 months' salary (Kshs. 207,921.00) awarded, plus certificate of service
Because the termination was in clear breach of the high confidence and trust expected between employer and employee, reinstatement would not be a just remedy. The grievant was a good worker who did not contribute to the termination, warranting maximum compensation of 12 months' salary at Kshs. 17,326.75 per month.
Legal principles established
#- The employer bears the burden of justifying the grounds for termination and proving the reason for termination
- Where the employer fails to produce the alleged reason for termination, it has failed to establish the reason for the termination
Court orders
#- 1.Declaration that the respondent's termination of the grievant's employment was unfair
- 2.Respondent to pay the grievant Kshs. 207,921.00 by 1.12.2014, failing interest at court rates from the date of judgment until full payment
- 3.Respondent to deliver the certificate of service to the grievant by 1.11.2014
- 4.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment Act, 2007; Industrial Court jurisdiction over employment disputes (memorandum of claim; conciliation certificate of disagreement dated 7.12.2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v Kenya Kazi Services Limited [2014] KEELRC 1348 (KLR)", Case Analysis (2014). Memorandum of claim filed 13.10.2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1348/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.