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ELRCPartially AllowedMemorandum of Claim (Employment Cause, number not stated in judgment)· [2014] KEELRC 1444 (KLR)

Caleb M. Basweti v Nakuru Lucky Investments [2014] KEELRC 1444 (KLR)

Employment and Labour Relations Court
28 November 2014
RSRadido Stephen
1,277 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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Caleb M. Basweti sued Nakuru Lucky Investments for unlawful and unfair termination. He testified that after about twelve years of service, having risen from cleaner to machine operator, the Respondent's director Patrick Kariuki directed him on 29 March 2013 to hand over the slot machine keys to a colleague on allegations of stealing, and later told him he had been dismissed. He received no termination letter, notice or dues. The Respondent, through its Accountant, contended that another cleaner was caught stealing, that the Claimant was off duty at the time and never reported back, and that he did not collect his March 2013 salary. The Court framed four issues: whether the Claimant was terminated or absconded; whether any termination was unfair; the appropriate remedies; and his job description. Relying on sections 9, 10 and 10(7) of the Employment Act, 2007, the Court found the Claimant was a machine operator, the Respondent having breached the statutory duty to issue a written contract. Accepting the Claimant's version, which the Respondent failed to controvert (the Manager Charles not being called), the Court found the services were terminated and not abandoned. Under section 41, the Respondent failed to confront the Claimant with allegations or hear him, so the termination was procedurally unfair, rendering consideration of sections 43 and 45 unnecessary. The Court awarded one month's pay in lieu of notice (Kshs 6,522/-) and seven months' gross wages as compensation (Kshs 52,500/-), totalling Kshs 59,022/-, dismissed the claims for severance pay and accrued leave, and awarded the Claimant costs assessed at Kshs 15,000/-.

Key legal issues

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01

Whether the Claimant was terminated or absconded

Holding

The Claimant was terminated and did not abscond

Reasoning

The Claimant gave a consistent account that the director directed him to hand over machine keys and not to resume until seeing the director. The Respondent's version was not controverted; the Manager Charles, who would have known the facts, was not called to testify and no explanation was given for his absence. Weighing the versions, the Court accepted the Claimant's account.

p. 2
02

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair

Reasoning

Section 41 obliged the Respondent to confront the Claimant with the allegations against him and to give him an opportunity to make representations. The Respondent did not discharge this statutory burden. Once procedural unfairness was found, it was unnecessary to consider sections 43 and 45.

p. 3
03

The Claimant's job description

Holding

The Claimant was a machine operator, not a cleaner, at the time of separation

Reasoning

Sections 9 and 10 of the Employment Act require an employer to issue a written contract with prescribed particulars including job description. The Respondent issued none. Under section 10(7), in the absence of a written contract the Court accepts the employee's account and finds he was a machine operator.

p. 2
04

Appropriate remedies

Holding

One month pay in lieu of notice and seven months' gross wages as compensation; severance and accrued leave refused

Reasoning

Compensation is discretionary but fettered by section 49 factors; the length of service of about 12 years justified the equivalent of seven months' gross wages. Notice pay was limited to one month per section 35(1)(c). Severance was inapplicable absent redundancy, and accrued leave failed on the Claimant's own admission.

p. 3

Legal principles established

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  • An employer has a statutory obligation to issue a written contract of employment containing prescribed particulars including job description; failure is a breach of the law and a criminal offence.
  • Where an employer fails to issue a written contract, the Court may rely on the employee's evidence as to the terms (section 10(7)).
  • Even an employee who has absconded is entitled to a hearing before termination under section 41.
  • A monthly-paid employee is entitled to one month written notice or pay in lieu under section 35(1)(c).

Court orders

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  1. 1.One month pay in lieu of notice of Kshs 6,522/-
  2. 2.Seven months gross wages as compensation of Kshs 52,500/- (total award Kshs 59,022/-)
  3. 3.Dismissal of the heads of claim for severance pay and accrued leave
  4. 4.Costs to the Claimant assessed at Kshs 15,000/-

Authorities

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Legislation

  • Employment Act, 2007sections 9, 10, 10(7), 35(1)(c), 41, 43, 45, 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination 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, "Caleb M. Basweti v Nakuru Lucky Investments [2014] KEELRC 1444 (KLR)", Case Analysis (2014). Memorandum of Claim (Employment Cause, number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1444/eng@2014-11-28

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