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ELRCDismissedMemorandum of Claim dated 25th August, 2014· [2016] KEELRC 1167 (KLR)

Ebel Peter Losur v James Finlays Kenya Limited [2016] KEELRC 1167 (KLR)

Employment and Labour Relations Court
17 May 2016
1,140 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a tea plucker's dismissal because the employer documented misconduct and followed a fair disciplinary process, so the employee's compensation claim failed.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent, brought a Memorandum of Claim dated 25th August 2014 alleging unlawful termination of his employment on 17th May 2014. He pleaded particulars of unlawful termination including failure to inform his trade union of a redundancy, non-payment of leave pay, no two months' salary in lieu of notice, no severance pay, and unremitted NSSF contributions, and sought a declaration of unlawful termination plus Kshs. 297,840 in various heads, costs and interests. The respondent countered that the claimant, a tea plucker under a CBA, carelessly caused the burning of two sacks of green leaf on 23rd April 2014 and used abusive language towards the Estate Assistant, ignored a request to meet the Estate Manager, and after a show cause letter and a disciplinary meeting attended with a shop steward, was lawfully dismissed for misconduct, his terminal benefits having been paid. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. On the evidence, the court found the respondent's case more credible and held the termination lawful, dismissing the claim and ordering each party to bear their own costs. Judgment was delivered on 17th May 2016 by D.K.Njagi Marete, J.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

Termination was lawful; the respondent's evidence was more credible and showed misconduct and a fair disciplinary process

Reasoning

The claimant alleged redundancy without notice, unpaid leave, notice pay and severance contrary to Section 40 of the Employment Act. The respondent proved that the claimant burnt two sacks of tea, used abusive language towards the Estate Assistant, ignored a request to meet the Estate Manager, answered a show cause letter unsatisfactorily, and was heard at a disciplinary meeting with a shop steward. The court found the respondent's evidence superior and held the termination lawful.

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02

Whether the claimant is entitled to the relief sought

Holding

No entitlement, having failed on the question of unlawful termination

Reasoning

Having found the termination lawful, the declaration and monetary claims for notice pay, service gratuity, leave dues, compensation for unfair termination and unremitted NSSF could not stand. The relief was entirely dependent on success on the first issue.

p. 3

Legal principles established

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  • Where the respondent's evidence is more credible and the claimant fails to answer the respondent's case, the claim fails.

Court orders

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  1. 1.Claim dismissed
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment ActSection 40
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Section 40 pleaded)

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, "Ebel Peter Losur v James Finlays Kenya Limited [2016] KEELRC 1167 (KLR)", Case Analysis (2016). Memorandum of Claim dated 25th August, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1167/eng@2016-05-17

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