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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 1494 (KLR)

Joyce Wairimu v Tiara Limited [2014] KEELRC 1494 (KLR)

Employment and Labour Relations Court
18 December 2014
MOMAUREEN ONYANGO
1,803 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a shop assistant overtime, leave and holiday pay, but she lost her unfair termination claim because she couldn't prove she was dismissed.

What this practically means

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Executive summary

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Joyce Wairimu, a former sales girl employed by Tiara Limited from October 2009 to December 2013, sued for Kshs.1,395,271.85 claiming unfair termination, underpayments, overtime, unpaid leave, public holiday pay, house allowance and pay in lieu of notice. The Respondent denied unfair termination, asserting the Claimant absconded duty and was rude to customers, and denied owing her anything. The court framed two issues: whether the Claimant was dismissed or absconded, and whether she was entitled to her prayers. On the first issue, applying section 47(5) of the Employment Act, the court held the evidence did not clearly establish termination or abscondment and found the Claimant had not proved unfair termination on a balance of probabilities, defeating the claims for pay in lieu of notice. On quantum, the court recharacterised her grade from 'salesman driver' to 'Shop Assistant' under the Regulation of Wages (General) Order and found she was paid above the consolidated statutory minimum wage, dismissing the underpayment and house allowance claims. However, the court awarded Kshs.77,653.30 as overtime (limited to 12 months as a continuing injury, at 1.5 times the hourly rate using the General Order formula), Kshs.47,600 for 89.25 days of untaken annual leave, and Kshs.25,600 for public holiday work at double rate over 6 days per year for 4 years. The Claimant, having been substantially successful, was awarded costs of the suit, with interest on the decretal sum at court rates from the date of judgment. Judgment was read in open court on 18th December 2014.

Key legal issues

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01

Whether the Claimant was unfairly terminated or absconded duty

Holding

The evidence did not establish whether the employment was terminated or the Claimant absconded; unfair termination was not proved on a balance of probabilities.

Reasoning

The Claimant said she was phoned by the Director and told to hand over keys and never return; the Respondent's witness gave a different account. Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The court found the Claimant failed to discharge this burden.

p. 2
02

Whether the Claimant was underpaid relative to statutory minimum wages

Holding

The claim for underpayment failed because the Claimant's correct grade was Shop Assistant, and her pay exceeded the consolidated statutory minimum wage including 15% house allowance.

Reasoning

The court examined the Regulation of Wages (General) Order and found the Claimant had wrongly based her claim on the 'salesman driver' grade, which requires use of a motor vehicle in sales. Her proper grade was Shop Assistant, whose minimum wage with 15% house allowance was below her actual pay.

p. 3
03

Whether the Claimant was entitled to overtime, unpaid leave and public holiday pay

Holding

Overtime awarded for only 12 months (Kshs.77,653.30), leave awarded at Kshs.47,600 for 89.25 days, and public holiday pay awarded at Kshs.25,600.

Reasoning

The court found overtime to be a continuing injury and allowed only 12 months' claim, computing 14 overtime hours per week. Unpaid leave was not specifically contested by the Respondent and was awarded. Public holiday pay was awarded at double rate for 6 holidays per year over 4 years.

p. 4

Legal principles established

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  • The burden of proving unfair termination rests on the employee, while the employer must justify the grounds of termination
  • Overtime is paid at 1.5 times the hourly rate computed per the Regulation of Wages (General) Order formula of one two-hundred-and-twenty-fifth of monthly salary
  • Work done on a public holiday attracts pay at double the normal rate
  • Where wage is consolidated to include 15% house allowance, no separate house allowance is payable

Court orders

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  1. 1.Award of Kshs.77,653.30 as overtime pay
  2. 2.Award of Kshs.47,600 as unpaid leave (89.25 days based on 21 days annual leave per year)
  3. 3.Award of Kshs.25,600 as public holiday pay (6 days a year for 4 years at double the normal rate)
  4. 4.Claimant awarded costs of the suit
  5. 5.Decretal sum to attract interest at court rates from date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and employment benefits claims (Employment Act)

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, "Joyce Wairimu v Tiara Limited [2014] KEELRC 1494 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1494/eng@2014-12-18

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