Steve Onyari Nyambegera v Bake ‘N’ Bite Mombasa Ltd [2015] KEELRC 387 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Commencement date of employment
Employment commenced in March 2010 and ended on 29 October 2013
The Respondent was obliged under section 9(2) of the Employment Act to draw a written contract with particulars under section 10, including the commencement date. Having failed to do so, section 10(7) placed on it the burden of disproving the Claimant's assertion of employment in 2010, which it did not discharge.
Procedural fairness of the termination
The Respondent complied with section 41 requirements; procedural fairness was satisfied
The Claimant was notified of the allegations and afforded an opportunity to make representations at a face-to-face hearing on 29 October 2013, attended by Union officials and a Works Committee official. The unchallenged testimony of the Chief Shop Steward confirmed the hearing. The requirements of section 41 were thus met.
Substantive fairness of the termination
The incitement allegation was not proved, but non-adherence to procedure (excess yeast) was proved; however the penalty was unfair as double punishment
The incitement allegation failed because the employees allegedly incited and the date of incitement were never disclosed. The excess yeast transgression was proved, but the Respondent both deducted the cost of the loss from the Claimant's dues and terminated his employment. Applying normal termination while also recovering the loss penalised him twice and was not in accord with justice and equity.
Remedies
One month pay in lieu of notice (Kshs 13,206/-), leave balance difference (Kshs 15,565/40) and compensation equivalent of 3 months gross wages (Kshs 51,504/-) awarded; damages for lost prospective earnings declined
Because the penalty was normal termination, notice pay was due; the monthly pay of Kshs 13,206/- agreed with the Union was used as the measure since no evidence of working days was led. Leave records not produced, so the difference between the claimed entitlement and the Kshs 21,459/- actually paid was awarded. Compensation was discretionary, set at 3 months given about 4 years of service. No basis was laid for lost prospective earnings.
Legal principles established
#- An employee bears an initial, low-threshold burden of proving unfair termination under section 47(5) of the Employment Act, 2007
- Where an employer fails to draw up a written contract with commencement date as required by sections 9 and 10 of the Employment Act, the employer bears the burden under section 10(7) of disproving the employee's asserted commencement date
- Procedural fairness under section 41 requires the employee be informed of charges, given an opportunity to prepare and be heard, and have representations heard and considered before dismissal
- Recovering the cost of loss from an employee and also terminating their employment amounts to double punishment and is substantively unfair
Court orders
#- 1.Respondent to pay the Claimant 1 month pay in lieu of notice of Kshs 13,206/-
- 2.Respondent to pay the Claimant leave balance of Kshs 15,565/-
- 3.Respondent to pay the Claimant compensation of Kshs 51,504/-
- 4.Total award of Kshs 80,275/-
- 5.Claim for damages for lost earnings dismissed
- 6.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Steve Onyari Nyambegera v Bake ‘N’ Bite Mombasa Ltd [2015] KEELRC 387 (KLR)", Case Analysis (2015). Cause No 135 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/387/eng@2015-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.