Tailors and Textiles Workers Union v Chic Fashions Limited [2015] KEELRC 277 (KLR)
The bottom line
#A Kenyan court ruled a worker fired for absconding without a chance to explain was unfairly dismissed, but his older claims failed for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Date of commencement of employment
The Court deemed the claimant to have been employed in 2011, not 2006
The claimant acknowledged paysheets from December 2011 signed against payment. He produced no document or witness to prove employment from 2006. The union's membership card alone, without a recognition agreement or CBA listing him as the respondent's employee, was insufficient. The unrefuted evidence of the respondent's HR manager was therefore accepted.
Status of the claimant's employment
Although engaged on daily wages, the claimant was in regular service and thus benefitted from section 37(1) of the Employment Act
The respondent's own allegation that the claimant absconded duty showed he was not a mere casual labourer but in regular service. The deeming provisions of section 37(1) of the Employment Act therefore applied to his contract, entitling him to the protections accorded to employees in regular service.
Fairness of termination
The termination was without valid or justifiable reasons and the procedure was unfair
The respondent alleged absconding but produced no notice to show cause and made no attempt to contact the claimant. No disciplinary hearing was held and no termination letter was issued. Termination on grounds of unauthorized absence without such steps violated sections 41 and 45 of the Employment Act's requirements of valid reason and fair procedure.
Legal principles established
#- A casual employee engaged in regular service benefits from the deeming provisions of section 37(1) of the Employment Act, converting the engagement into a regular contract of service
- Termination without notice to show cause or any attempt to contact the employee is without valid or justifiable reason and procedurally unfair
- A party who asserts employment from an earlier date bears the evidential burden, failing which unrefuted documentary evidence of the employer will be accepted
Court orders
#- 1.Payment of one month's pay in lieu of notice of Kshs.11,805.00
- 2.Payment of service pay for 2011 at the rate of 15 days per year of Kshs.5,902.50
- 3.Payment of 7 months' pay for unfair termination of Kshs.82,635.00
- Jurisdiction invoked
- Referral of a labour dispute to the Employment and Labour Relations Court under the Labour Relations Act after conciliation by the Ministry of Labour
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tailors and Textiles Workers Union v Chic Fashions Limited [2015] KEELRC 277 (KLR)", Case Analysis (2015). Cause No. 1548 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/277/eng@2015-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.