Sylus Sabwa Gunyanyi v Style Industries Limited [2014] KEELRC 1448 (KLR)
The bottom line
#A Kenyan employer that couldn't produce attendance records or prove fair dismissal reasons was ordered to pay its former worker over Kshs 56,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's fixed term contract expired on 21 January 2014 or a new contract began
A new contract commenced on 22 January 2014 despite absence of a written contract, because the attendance records were not produced and the Claimant's testimony was uncontroverted
The last written contract expired on 21 January 2014, but the Claimant asserted he resumed duty on 22 January 2014 and was not cross-examined on this. Both parties agreed attendance records existed and showed he was last at work on 21 January 2014, yet the Respondent did not produce them. Their non-production, coupled with uncontroverted testimony, led the Court to find a new contract had begun.
Whether the Claimant's services were terminated
The Court was satisfied the Claimant's services were terminated on 4 March 2014
The Claimant testified he was dismissed by the Human Resources Officer on 4 March 2014 after producing documents requested on resumption from bereavement leave and a sick off supported by medical documents. The Respondent did not deny this evidence, and its suggestion that the medical documents were fake was unsupported by any material, so the Court accepted termination occurred.
Whether the termination was unfair
The termination was unfair because the Respondent led no evidence of compliance with sections 35 and 41 of the Employment Act and no valid and fair reasons for dismissal
The Respondent's defence of contract expiry having been rejected, it did not lead alternative evidence of compliance with sections 35 and 41 of the Employment Act, 2007, nor attempt to prove valid and fair reasons for the dismissal. The burden resting on the employer therefore went undefended, and the termination was found unfair.
Appropriate remedies for unfair termination
One month's notice pay of Kshs 10,379/-, salary from January to 4 March 2014 of Kshs 20,768/-, and compensation equivalent to one month's wages of Kshs 10,379/-, totalling Kshs 41,526/-
Notice pay was awarded under sections 35 and 36 of the Employment Act. Wages were awarded up to the date of termination found by the Court. For compensation, a discretionary but fettered remedy, the Court considered the Claimant's cumulative service of about one year and awarded the equivalent of only one month's wages.
Legal principles established
#- Where an employer fails to produce attendance records and the employee's testimony that he resumed duty is uncontroverted, the court may find a new contract commenced despite absence of a written contract
- An employer who alleges a contract merely expired and leads no evidence of compliance with sections 35 and 41 of the Employment Act, or of valid and fair reasons for dismissal, will be found to have unfairly terminated employment
- A party asserting documents are fake must place material before the court to prove it
Court orders
#- 1.One month pay in lieu of notice of Kshs 10,379/-
- 2.Salary from January to 4 March 2014 of Kshs 20,768/-
- 3.One month wage as compensation of Kshs 10,379/-
- 4.Total award of Kshs 41,526/-
- 5.Costs to the Claimant assessed at Kshs 15,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sylus Sabwa Gunyanyi v Style Industries Limited [2014] KEELRC 1448 (KLR)", Case Analysis (2014). Cause No 70 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1448/eng@2014-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.