Joseph Njoroge Thiga v Invesco Assurance Company Limited [2015] KEELRC 1604 (KLR)
The bottom line
#A Kenyan court dismissed a banker's unfair termination suit, confirming that employees must prove unfair dismissal while employers need only justify their genuine reasons.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in unfair termination claims under Sections 43 and 47(5) of the Employment Act
The employee bears the overall burden of establishing unfair termination; the employer bears the lesser burden of justifying the reasons for termination based on its genuine belief at the time.
The court acknowledged that the statutory provisions appear to confuse the traditional rule that he who alleges must prove, but clarified that the overall burden lies on the employee while the employer only justifies its genuinely held reasons. Applying this, the court found the Respondent had both provided and justified reasons for terminating the Claimant, discharging its onus under Sections 43(1) & (2) and 47(5).
Whether the Respondent justified the termination on the ground of the Claimant's role in the double payment of Kshs.325,000
Yes. The Respondent genuinely believed the Claimant played a significant role in causing the overpayment, and his over-enthusiasm in following up payment was indicative of an interest adverse to the employer.
The court found that, on the undisputed facts, the Claimant and the respondent's witnesses carried a share of the blame. The Respondent believed the Claimant was in custody of the extra cheque and had gone beyond his normal duty in instructing payment of a third cheque while knowing the second cheque had been misplaced. This genuine belief sufficed to justify termination under Section 43.
Entitlement to six months' salary in lieu of notice
The claim had no basis because termination was in accordance with the parties' contractual terms which provided for termination on one month's notice or payment in lieu.
The letter dated 28th September 2011 provided additional terms and conditions of employment, including termination by either party on one month's notice or payment of one month's salary in lieu. Since the court found the termination was in accordance with those terms, the claim for six months' pay in lieu of notice could not stand and was rejected.
Entitlement to a certificate of service
The Claimant was entitled to a certificate of service, which the Respondent was ordered to issue within fourteen days despite the dismissal of the suit.
Although the suit was dismissed, the court exercised its discretion to direct the Respondent to issue the certificate of service, a statutory entitlement of a departing employee under the Employment Act, within fourteen days of the judgment. This reflects that the certificate is an administrative obligation independent of the lawfulness of termination.
Legal principles established
#- The overall burden of proving unfair termination or wrongful dismissal rests on the employee, while the employer bears the lesser burden of justifying the reasons for termination
- An employer need only show that it genuinely believed the reasons for termination to exist at the time of termination
Court orders
#- 1.The suit by the Claimant is dismissed with costs to the Respondent
- 2.The Respondent is directed to provide the Claimant with a certificate of service within fourteen (14) days from the date of the judgment
- 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, "Joseph Njoroge Thiga v Invesco Assurance Company Limited [2015] KEELRC 1604 (KLR)", Case Analysis (2015). Cause 84 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1604/eng@2015-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.