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ELRCPartially AllowedCause No. 1285 of 2014· [2016] KEELRC 1100 (KLR)

Phillip Nzungi Mulinge v Sbi International Holding Ag Kenya & another [2016] KEELRC 1100 (KLR)

Employment and Labour Relations Court
13 June 2016
HWHellen S. Wasilwa
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer's dismissal was unfair because it couldn't prove the employee's absence and never gave him a hearing.

What this practically means

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Executive summary

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The Claimant, a Grove Crane Operator, claimed he was employed by the 1st Respondent from 21.1.2007 until 21.5.2010, when he was simultaneously engaged by the 2nd Respondent on a need-to basis at the 1st Respondent's site, with salary paid by the 1st Respondent up to January 2013. He alleged he was unlawfully and summarily terminated with effect from 27.1.2013 without reasons or a hearing, and sought 12 months' compensation, notice pay, leave pay, service pay, costs and interest. The Respondents contended the claim was time barred under Section 90 of the Employment Act against the 1st Respondent, that the companies are separate entities, that the Claimant absented himself for about two weeks warranting summary dismissal, and that all dues were paid. The court framed three issues: limitation, valid reason, and due process. It held the claim was not time barred because the dismissal letter was dated 1.2.2013 and payslips showed employment into 2013. On validity, the unsigned attendance sheet was not conclusive proof of absenteeism, so no valid reason existed. On process, Section 41 of the Employment Act was not followed, RW1 admitting the Claimant was not heard. The termination was unfair under Section 45(2). The court awarded Kshs. 396,016 comprising notice pay, admitted leave pay, service pay for two years and 12 months' compensation, ordered a Certificate of Service, and awarded costs to the Claimant.

Key legal issues

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01

Limitation - whether the claim was time barred under Section 90

Holding

The claim was not time barred as dismissal occurred on 1.2.2013 with effect from 27.1.2013 and suit was filed on 5.8.2014, within three years

Reasoning

The Respondents argued the claimant was terminated in 2010 and the claim filed in 2014 was out of time. The court found the claimant's payslips for 2012 and January 2013 and the dismissal letter dated 1.2.2013 showed employment continued until 2013, so Section 90's three-year period had not lapsed. The limitation objection against the 1st Respondent therefore failed.

p. 3
02

Whether there was a valid reason for summary dismissal

Holding

No valid reason was proved; the unsigned attendance sheet was not conclusive evidence of absenteeism

Reasoning

The Respondents alleged the claimant absconded for 7 to 9 days. The claimant denied this. The only attendance sheet produced lacked the relevant signatures and could not conclusively establish absence. The burden was on the employer to prove the alleged absenteeism with signed daily attendance records, which it failed to do.

p. 3
03

Whether due process under Section 41 of the Employment Act was followed

Holding

Due process was not followed; the claimant was unfairly and unjustly terminated under Section 45(2)

Reasoning

Section 41 requires an employer to explain the reasons for termination and to hear and consider the employee's representations before dismissal. RW1 admitted in cross-examination that the claimant was not given an opportunity to be heard. Having failed on both valid reason and fair procedure, the termination was unfair under Section 45(2) of the Employment Act.

p. 4

Legal principles established

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  • An employer alleging summary dismissal for absenteeism must prove the absence with reliable records such as signed attendance sheets
  • An employer must comply with Section 41 of the Employment Act by explaining reasons and hearing the employee before termination

Court orders

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  1. 1.Payment of 1 month's salary in lieu of notice of Kshs. 27,004.56
  2. 2.Payment of leave pay of Kshs. 17,960 as admitted by the Respondents
  3. 3.Payment of service pay for 2 completed years of service of Kshs. 27,004.56
  4. 4.Payment of 12 months' salary as compensation for unfair and wrongful termination of Kshs. 324,046, totalling Kshs. 396,016
  5. 5.Issuance of a Certificate of Service
  6. 6.Respondents to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 44(3), (4) and 44(4)(a-g)
  • Employment ActSection 45(2)
  • Employment & Labour Relations Court ActSection 90
Jurisdiction invoked
Employment and Labour Relations Court Act; Employment Act 2007 (Section 90 invoked on limitation; Sections 41, 44, 45 on termination)

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, "Phillip Nzungi Mulinge v Sbi International Holding Ag Kenya & another [2016] KEELRC 1100 (KLR)", Case Analysis (2016). Cause No. 1285 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1100/eng@2016-06-13

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