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ELRCAllowedNot stated in the judgment· [2015] KEELRC 216 (KLR)

Jared Odhiambo ojao v Poly Pipes Limited [2015] KEELRC 216 (KLR)

Employment and Labour Relations Court
27 November 2015
RSRadido Stephen
772 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 security guard Kshs 1.7 million after Poly Pipes Ltd fired him without written notice and never defended the case in court.

What this practically means

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Executive summary

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The Claimant, Jared Odhiambo Ojao, sued Poly Pipes Ltd for unlawful termination of employment, alleging he was employed as a security guard from August 2003 and dismissed verbally on 1 July 2014 without notice, a dismissal letter or payment of dues, at a monthly salary of Kshs 12,622/-. Despite service of pleadings and mention notices on the Respondent's director, Mukesh Patel, the Respondent neither filed a Response nor attended court, and the Cause proceeded undefended on 15 July 2015 with sworn uncontroverted testimony from the Claimant. The Court held that the Respondent's failure to file a Response left the Claimant's facts uncontested. Applying section 35(1)(c) of the Employment Act, 2007, the Court found the absence of the statutory 28 days' written notice rendered the termination procedurally unfair. Further, the Respondent failed to discharge the statutory burden imposed on employers by sections 43 and 45 of the Employment Act, 2007, so the termination was also substantively unfair. On remedies, the Claimant was awarded 1 month's wage in lieu of notice (Kshs 11,633/-), service gratuity (Kshs 55,638/-), overtime (Kshs 1,388,640/-), underpayments (Kshs 58,573/-) and, considering his 12 years of service, the maximum 12 months' wages as compensation (Kshs 188,448/-), totaling Kshs 1,702,931/-. The Claimant was awarded costs. Judgment was delivered in Nakuru on 27 November 2015 by Radido Stephen, Judge.

Key legal issues

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01

Procedural fairness of termination

Holding

Termination was procedurally unfair because no written notice of 28 days was given

Reasoning

Section 35(1)(c) of the Employment Act, 2007 obliges an employer to give at least 28 days' written notice of termination to monthly-paid employees. The Claimant, who earned a monthly salary of Kshs 12,622/-, was dismissed verbally on 1 July 2014 without any dismissal letter or notice. Consequently the termination was procedurally unfair.

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02

Substantive fairness and burden of proof

Holding

Termination was substantively unfair as the Respondent failed to discharge the statutory burden under sections 43 and 45

Reasoning

By failing to file a Response and not attending the hearing, the Respondent left the Claimant's testimony unchallenged. The employer bears the statutory burden under sections 43 and 45 of the Employment Act, 2007 to prove valid reasons for termination and fair procedure. Non-attendance meant the burden was not discharged, so the termination was also substantively unfair.

p. 2
03

Remedies for unfair termination

Holding

Claimant awarded notice pay, service gratuity, overtime, underpayments and maximum 12 months' compensation

Reasoning

Considering the length of service of about 12 years, the Court found the Claimant entitled to the maximum 12 months' wages as compensation, in addition to the heads of claim claimed in the Memorandum of Claim, which remained uncontroverted: 1 month pay in lieu of notice, service gratuity, overtime and underpayments, totaling Kshs 1,702,931/-.

p. 2

Legal principles established

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  • An employer must give at least 28 days written notice of termination to monthly-paid employees; failure renders termination procedurally unfair
  • Failure to file a Response means the claimant's facts and testimony are uncontested

Court orders

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  1. 1.The Court found the termination of the Claimant's employment was unfair
  2. 2.Award of 1 month wage in lieu of notice of Kshs 11,633/-
  3. 3.Award of service gratuity of Kshs 55,638/-
  4. 4.Award of overtime of Kshs 1,388,640/-
  5. 5.Award of underpayments of Kshs 58,573/-
  6. 6.Award of maximum compensation of 12 months' wages, Kshs 188,448/-
  7. 7.Total award of Kshs 1,702,931/- to the Claimant
  8. 8.Claimant to have costs

Authorities

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Legislation

  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Jared Odhiambo ojao v Poly Pipes Limited [2015] KEELRC 216 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/216/eng@2015-11-27

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