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ELRCPartially AllowedMemorandum of Claim dated 15th August 2012, filed 17th August 2012· [2015] KEELRC 1612 (KLR)

Jackson Nzioka Ndunda v Viable Deco Solutions [2015] KEELRC 1612 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
13 March 2015
MOMaureen Onyango
843 words in judgment
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The bottom line

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A Kenyan employer was penalised for verbally firing a worker without giving him a chance to be heard, as the Employment Act requires.

What this practically means

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Executive summary

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The claimant, a carpenter employed by the respondent at a monthly salary of Kshs 20,650, sued under the Employment Act alleging he was subjected to unfair working conditions, worked extra hours without compensation, and was verbally terminated without payment of terminal benefits. He sought service pay for four years, one month's salary in lieu of notice, leave allowance for 2011, interest, costs and any other relief. The respondent admitted the employment but denied overtime, denied verbal termination, and averred the claimant left of his own volition with full terminal benefits paid. At the hearing on 9th October 2014 only the claimant testified; the respondent called no witnesses and filed no submissions, leaving the claimant's evidence uncontroverted. The court framed two issues: whether the claimant was terminated or left voluntarily, and his entitlement to the prayers. The claimant testified he was verbally terminated by the Chief Executive Officer for failing to report to work on Sunday 27th March 2011, despite his contract requiring work Monday to Saturday. Applying Section 41 of the Employment Act, the court held that the failure to comply with the mandatory termination procedure rendered the termination unfair. The claimant was awarded one month's salary in lieu of notice (Kshs 20,650), pay in lieu of 8 months' accrued leave (Kshs 13,767) and leave travel allowance (Kshs 1,600). Service pay was refused as he was an NSSF member. The respondent was ordered to pay the claimant's costs and interest on the decretal sum at court rates from the date of judgment.

Key legal issues

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01

Whether the verbal termination of the claimant's employment was unfair

Holding

The verbal termination was unfair because the respondent failed to follow the mandatory procedure in Section 41 of the Employment Act; the claimant was not given an explanation or an opportunity to be heard before termination for failing to report to work on a Sunday.

Reasoning

Section 41 of the Employment Act requires an employer, before terminating employment on grounds of misconduct, poor performance or physical incapacity, to explain the reasons to the employee in a language the employee understands, entitling the employee to have a fellow employee or shop floor union representative present, and to hear and consider any representations. The claimant was terminated verbally by the CEO without any such explanation or hearing. The respondent neither called evidence nor filed submissions, so the claimant's evidence that he was told to go away and wait to be recalled stood uncontroverted. Failure to comply with the statutory procedure rendered the termination unfair.

p. 2
02

Whether the claimant was entitled to service pay, notice pay and leave allowance

Holding

Service pay was refused because the claimant was an NSSF member; one month's salary in lieu of notice (Kshs 20,650) and pay in lieu of 8 months' accrued leave (Kshs 13,767) plus leave travel allowance of Kshs 1,600 were awarded.

Reasoning

The claimant's employment contract required work Monday to Saturday, so his failure to report on a Sunday was the stated ground of termination. Having worked from August 2010 to March 2011 (8 months), he accrued proportionate leave pay. His payslip showed NSSF deductions, disqualifying service pay. The leave travel allowance of Kshs 1,600 was provided in the employment contract and was not controverted by the respondent, which called no evidence.

p. 2

Legal principles established

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  • An employer who fails to comply with the termination procedure in Section 41 of the Employment Act effects an unfair termination.
  • Where a respondent does not call any evidence, the claimant's uncontroverted evidence stands.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 20,650 awarded to the claimant
  2. 2.Pay in lieu of 8 months leave of Kshs 13,767 awarded to the claimant
  3. 3.Leave travel allowance of Kshs 1,600 awarded to the claimant
  4. 4.Respondent to pay claimant's costs of the suit
  5. 5.Interest on the decretal sum at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim for contravention of the Employment Act (unfair termination and terminal benefits)

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, "Jackson Nzioka Ndunda v Viable Deco Solutions [2015] KEELRC 1612 (KLR)", Case Analysis (2015). Memorandum of Claim dated 15th August 2012, filed 17th August 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1612/eng@2015-03-13

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