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ELRCPartially Allowed· [2016] KEELRC 805 (KLR)

Hardley Mulanda & 53 others v Giefcon Limited [2016] KEELRC 805 (KLR)

Employment and Labour Relations Court
29 July 2016
OMOnesmus Makau
1,033 words in judgment
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The bottom line

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Kenyan workers who quit without notice lose terminal dues claims unless they prove their employer terminated them.

What this practically means

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Executive summary

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This was a first-instance claim before the Employment and Labour Relations Court, decided by Onesmus Makau J, for terminal dues following the alleged termination of the claimants' employment without notice. The claimants, employed between July 2012 and August 2014 to provide labour to Toyo Construction Ltd through the respondent, alleged termination on diverse dates between 7.5.2014 and 21.5.2015 and claimed salary in lieu of notice, cash in lieu of untaken leave, salary arrears for underpayment, house allowance and Certificates of Service. The respondent, a labour provider contracted by Toyo, denied liability, contending the claimants voluntarily deserted employment without notice to take up direct private contracts with Toyo. It further asserted that the claimants' union had agitated a dispute before the Labour officer in 2015, which was settled and complied with, and it denied that six named individuals were its employees. The suit proceeded by written submissions on pleadings, witness statements and documents. The court framed two issues: whether the claimants deserted or were terminated, and entitlement to reliefs. Applying section 47(5) of the Employment Act, it held the burden lay on the employees, found no proof of termination by the respondent, and concluded the claimants deserted without notice, a finding corroborated by the Labour officer proceedings. All monetary reliefs failed for want of proof: notice (claimants terminated their own contracts), leave (no particulars pleaded), house allowance and underpayment (no evidential basis; the 1.7.2015 Memo and Return to Work Formula post-dated their departure). Only Certificates of Service were granted under section 51. The suit was otherwise dismissed with each party bearing their own costs.

Key legal issues

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01

Desertion versus termination without notice

Holding

The claimants deserted their employment without notice; they did not prove termination by the respondent.

Reasoning

The court found the claimants' contracts ended on diverse dates but no evidence proved the respondent terminated them. Section 47(5) of the Employment Act places the burden of proof on the employee alleging wrongful dismissal. The respondent's case that the claimants deserted for greener pastures at Toyo Construction Ltd was corroborated by proceedings before the Labour officer in which workers and their union agitated for better terms. Desertion was found to have occurred without prior notice to the respondent.

p. 2
02

Entitlement to terminal dues (notice, leave, house allowance, underpayment)

Holding

All monetary reliefs failed for want of proof; only the Certificate of Service was granted.

Reasoning

The notice claim failed because the claimants themselves terminated their employment without notice. Leave, house allowance and underpayment claims failed because no particulars or evidential basis was given in the pleadings or witness statements. The Memo dated 1.7.2015 and the Return to Work Formula did not apply to the claimants since all had already deserted employment when those instruments were made.

p. 3

Legal principles established

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  • Under section 47(5) of the Employment Act, the burden of proving wrongful dismissal lies with the employee alleging it.
  • An employee is entitled to a Certificate of Service under section 51 of the Employment Act.

Court orders

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  1. 1.Respondent to issue Certificates of Service to the claimants as prayed
  2. 2.Claimants' suit otherwise dismissed
  3. 3.Each party to bear his or her own costs

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (section 47(5) and section 51 of the Employment Act applied)

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, "Hardley Mulanda & 53 others v Giefcon Limited [2016] KEELRC 805 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/805/eng@2016-07-29

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