Stella Moraa Ondari v Goodwill Photo Lab Limited [2015] KEELRC 221 (KLR)
The bottom line
#A Kenyan employer who lacked written contracts and records lost an unfair termination case and had to pay notice, salary, leave and house allowance.
What this practically means
#Executive summary
#Key legal issues
#Absence of a written employment contract and employment records
The employer's statutory duty to issue a written contract under section 10 of the Employment Act is mandatory; in its absence the employee's word is taken seriously and the defence is left bare where pay slips and records under sections 73 and 74 are not produced
The court held that the duty to prepare a written contract lies with the employer and must be fulfilled within two months. Because the Respondent produced no contract, pay slips or statutory records, there was no documentary evidence to controvert the Claimant's testimony on salary, house allowance and leave, leaving the defence bare and the Claimant's word uncontroverted.
Validity of the termination and allegations of missing stock
The termination was unfair; the employer failed to prove the reason for termination or to follow due process under section 41
The allegation of missing stock was serious and warranted sanction, but the Respondent did not show how the loss was noted, how blame was laid on the Claimant, or that due process allowed her to account for it. No record existed of any action taken on 28th March 2012 or afterwards, so the resultant loss of employment amounted to unfairness under sections 43 and 45.
Entitlement to remedies
Notice pay, March 2012 salary, leave pay and house allowance awarded; 12 months' compensation refused as discretionary given the short tenure
Section 45 applied because due process was not accorded. However, compensation under section 49 is discretionary, and given only 4 months of service, it was not awarded. Notice pay, unpaid March salary, leave pay computed ex gratia for under 12 months' service, and house allowance (absent any contract term on housing) were awarded.
Legal principles established
#- Employers must issue written contracts of employment within two months; failure shifts evidentiary weight to the employee's word and leaves the defence bare where records are not produced
- Under section 43 of the Employment Act the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair
- Even where an employee allegedly absconds, the employer must follow due process under section 41 by issuing notices and requiring the employee to answer; inaction amounts to unfair labour practice
Court orders
#- 1.Notice pay at Kshs.18,000.00
- 2.Salary for March 2012 at Kshs.18,000.00
- 3.Leave pay at Kshs.4,200.00
- 4.House allowance at Kshs.12,000.00
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act claims; unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stella Moraa Ondari v Goodwill Photo Lab Limited [2015] KEELRC 221 (KLR)", Case Analysis (2015). Cause No. 1132 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/221/eng@2015-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.