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ELRCPartially AllowedCause Number 4 of 2015· [2016] KEELRC 942 (KLR)

Saidi Wetende Auma v Central Furniture Shop Limited [2016] KEELRC 942 (KLR)

Employment and Labour Relations Court
15 July 2016
2,709 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a truck driver's firing unfair because the employer had no solid evidence and never gave him a hearing, awarding nine months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Long Distance Truck Driver from May 2010 until termination by one month's notice dated 3rd December 2014, claimed unfair and unlawful termination, seeking notice pay, salary for November and December 2014, severance pay, annual leave pay, overtime pay, refund of unauthorized deductions, compensation for unfair termination, a Certificate of Service and a declaration. Parties recorded a partial Award agreeing payment of Kshs. 50,000 for November and December 2014 salary. The Court found the Claimant was clearly given one month's notice, rejecting notice pay. His overtime claim of Kshs. 666,250, the bulk of the claim, failed for want of evidential detail; the annual leave claim failed because the notice period ran with his leave balance and he was away from duty for about 94 days on Truck repairs. Severance pay was declined as there was no redundancy, the operative provisions being Sections 41, 43 and 45 rather than Section 40 of the Employment Act. The Respondent's allegations that the Claimant caused accidents and Truck damage through free-wheeling were unsupported by mechanical evidence, accident records or Court proceedings, and the Claimant was denied a hearing before termination. The Court declared the termination unfair for want of substantive justification and procedural fairness, awarding compensation equivalent to 9 months' salary at Kshs. 225,000, plus the agreed Kshs. 50,000, payable within 30 days, and ordered release of the Certificate of Service. The claim for refund of Kshs. 10,000 in deductions was refused. Each party was ordered to bear its own costs.

Key legal issues

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01

Substantive and procedural fairness of termination

Holding

Termination was unfair for want of both substantive justification and procedural fairness; compensation of 9 months' salary awarded

Reasoning

The Respondent attributed the termination to the Claimant's improper use of the Truck, citing accidents, free-wheeling and gear box damage. However, no mechanical evidence, accident records or Court proceedings were availed to substantiate the allegations. The Claimant drove a used Truck where wear and tear was expected. The Respondent also denied the Claimant a hearing, failing to charge him or call upon him to show cause under Section 41 of the Employment Act.

p. 5
02

Severance pay under Section 40

Holding

Severance pay is payable only in redundancy; none existed here

Reasoning

The termination notice did not communicate any scaling down of operations or restructuring, and the driving role was not phased out. The correct statutory provisions were Sections 41, 43 and 45, not Section 40. Severance pay claim therefore had no foundation.

p. 4
03

Overtime and annual leave claims

Holding

Both claims rejected for want of evidential support

Reasoning

The Claimant, carrying the bulk of his monetary claim in overtime, did not show specific hours worked or the formula used, and was not driving around the clock. The annual leave claim failed because the notice period ran concurrently with leave balance, salary vouchers showed days off, and he was away for large periods during Truck repairs totalling about 94 days.

p. 4
04

Burden of proof on unauthorized deductions

Holding

Claim for refund of Kshs. 10,000 refused

Reasoning

There was no Court receipt showing the Kshs. 20,000 fine was imposed, and deductions may have been made more than once for different reasons. It was for the Claimant to persuade the Court what the deductions represented, which he failed to do.

p. 5

Legal principles established

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  • Termination must be both substantively justified and procedurally fair; employers must accord employees a hearing under Section 41 of the Employment Act before termination
  • Allegations of misconduct supporting termination must be substantiated by evidence in the employment record; normal wear and tear on a used vehicle does not establish employee fault
  • A Certificate of Service should be released through the parties' Advocates rather than withheld on grounds the employee failed to collect it

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay the Claimant 9 months' salary in compensation for unfair termination at Kshs. 225,000
  3. 3.Respondent to pay the Claimant salary for November and December 2014 at Kshs. 50,000 as agreed between the Parties
  4. 4.Total sums to be paid within 30 days of delivery of the Award
  5. 5.Respondent to release to the Claimant his Certificate of Service forthwith
  6. 6.Parties to bear their own costs of the Claim

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 51
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
Jurisdiction invoked
Industrial Court (Employment and Labour Relations Court) jurisdiction under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Saidi Wetende Auma v Central Furniture Shop Limited [2016] KEELRC 942 (KLR)", Case Analysis (2016). Cause Number 4 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/942/eng@2016-07-15

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