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ELRCPartially AllowedCause No 396 of 2013· [2015] KEELRC 1479 (KLR)

Samson Makamu Luvutse v Nakuru Spare House Ltd [2015] KEELRC 1479 (KLR)

Industrial Court (Employment and Labour Relations Court)
6 February 2015
3,529 words in judgment
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The bottom line

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A Kenyan court ruled an employee was unfairly dismissed verbally, not a deserter, and awarded him Kshs 80,665 plus a certificate of service.

What this practically means

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Executive summary

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The Claimant sued Nakuru Spare House Ltd alleging unlawful dismissal, discrimination on account of his health, underpayment, overtime, unpaid leave, gratuity and withholding of dues, and sought compensation of Kshs 446,748.55, a certificate of service and a declaration of constitutional violation. The Respondent denied the claims and counterclaimed Kshs 27,260/- being one month's pay in lieu of notice and an alleged outstanding loan. The Court found the Claimant was employed on 3 December 2006, based on his job application letter, and that he was a general labourer rather than a shop assistant or salesman, given his inconsistent pleadings and disowned appointment letter. He was found underpaid during 2010-2012 under the applicable Wages Orders. Overtime and annual leave claims largely failed for lack of evidence, save for pro rata leave for 2012 factored into compensation. The Claimant discharged his burden under section 47(5) of the Employment Act; the Respondent failed to prove desertion, gave no hearing under section 41, no notice under section 35, and no valid and fair reason under sections 43 and 45. The Court held he was verbally terminated and the termination was procedurally and substantively unfair. The discrimination claim failed as the testimony was incoherent. The counterclaim failed in both limbs. The Court awarded Kshs 80,665/- comprising one month's pay in lieu of notice (Kshs 7,915/-), underpayments (Kshs 9,036/-) and 7 months' wages as compensation (Kshs 63,714/-), ordered a certificate of service, and directed each party to bear own costs.

Key legal issues

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01

Date of commencement of employment

Holding

Claimant was employed on 3 December 2006, though the relationship was only formalized in writing in 2008.

Reasoning

The Respondent denied the pleaded start date but did not plead its own date. The Claimant's job application letter dated 3 December 2006 addressed to the Respondent, together with the Respondent's director's testimony based only on records (he joined operations in 2014), made it more probable than not that employment began in 2006.

p. 2
02

Claimant's designation/occupation

Holding

Claimant was a general labourer, not a shop assistant or salesman.

Reasoning

The Claimant was inconsistent, pleading shop assistant but telling the Labour office and his advocate he was a salesman, and he disowned the appointment letter. He also failed to disclose his day-to-day duties. Since salesman and shop assistant attract different minimum wages under the Wages Orders, and the claim failed on designation, the Court found him a general labourer for wage purposes.

p. 2
03

Unfair termination versus desertion

Holding

The Claimant did not desert duty; he was verbally terminated, and the termination was both procedurally and substantively unfair.

Reasoning

The Claimant discharged his burden under section 47(5) with uncontroverted evidence of hospitalisation and of being told to leave and collect his wages. The Respondent failed to prove desertion, gave no hearing under section 41, no notice under section 35, and did not prove valid and fair reason under sections 43 and 45.

p. 4
04

Alleged discrimination on health status

Holding

No positive finding of discrimination based on medical status despite awareness of the dismissal timing.

Reasoning

The Claimant's testimony was incoherent, shifting between being stopped from drinking tea and being stopped from preparing tea, and he could not recall when this occurred. Although the Respondent may have learned of his status around 8 November 2012, the case as prosecuted did not establish the discrimination claim.

p. 5
05

Counterclaim for Kshs 27,260/-

Holding

Counterclaim failed in both limbs.

Reasoning

The notice-pay limb failed because there was no desertion. The loan limb failed because the vouchers were unchallenged but the Respondent did not rebut the Claimant's assertion that loans were recoverable from wages and produced no records of recoveries, though it alone controlled deductions at source.

p. 5
06

Remedies

Holding

Award of one month pay in lieu of notice, underpayments totalling Kshs 9,036/-, and 7 months' wages as compensation for unfair termination, plus certificate of service.

Reasoning

Compensation under section 49 is discretionary, guided by section 49(4) factors including length of service; the Claimant served about 7 years. Pro rata 2012 leave, unspecified, was factored into compensation under section 49(4)(i). The minimum wage for a general labourer was used as the basis.

p. 6

Legal principles established

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  • In complaints of unfair termination, the burden of proving that unfair termination or wrongful dismissal occurred rests on the employee, while the burden of justifying the grounds rests on the employer (section 47(5) Employment Act).
  • Summary dismissal on ground of absence without permission is still subject to procedural fairness under section 41, being a species of misconduct.
  • An employer contemplating dismissal for desertion of an absent employee who is reachable must inform him and may have to demonstrate reasonable attempts to contact him.

Court orders

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  1. 1.One month wage in lieu of notice of Kshs 7,915/-
  2. 2.Underpayments of Kshs 9,036/-
  3. 3.7 months wages compensation of Kshs 63,714/-
  4. 4.Total award of Kshs 80,665/- against the Respondent
  5. 5.Respondent to issue the Claimant a certificate of service forthwith
  6. 6.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 35 (including 35(1)(c) and 35(5))
  • Employment Act, 2007section 36
  • Employment Act, 2007section 49 (including 49(1)(c) and 49(4)(i))
  • Industrial Court Actsection 20
  • Statute Law Miscellaneous Amendment Act, 2014amendments to Industrial Court Act (evidence rules)
  • Legal Notice No. 38 of 2006minimum wage for general labourer
  • Legal Notice No. 70 of 2009minimum wage for general labourers in Nakuru
  • Legal Notice No. 98 of 2010minimum wage inclusive of house allowance
  • Legal Notice No. 64 of 2011minimum wage inclusive of house allowance
  • Legal Notice No. 71 of 2012minimum wage inclusive of house allowance
  • Regulation of Wages (General) (Amendment) Ordersseparate listing of salesman and shop assistant occupations
Jurisdiction invoked
Industrial Court Act, 2011 (employment and labour relations jurisdiction); Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samson Makamu Luvutse v Nakuru Spare House Ltd [2015] KEELRC 1479 (KLR)", Case Analysis (2015). Cause No 396 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1479/eng@2015-02-06

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