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ELRCPartially AllowedCause No 1401 of 2011· [2016] KEELRC 1382 (KLR)

Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] KEELRC 1382 (KLR)

Employment and Labour Relations Court of Kenya
24 March 2016
LNLINNET NDOLO
1,195 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Medical Representative from 17th November 2008 at a final salary of Kshs. 34,503, claimed he was verbally terminated on 17th December 2010 upon requesting annual leave. The Respondent asserted he deserted duty after being summoned to a meeting to discuss underperformance, rendering himself liable to summary dismissal, and counterclaimed one month's salary in lieu of notice for his failure to hand over. The Court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and his entitlement to remedies. Holding that desertion must be proved like any misconduct, the Court found the Respondent's efforts to reach the Claimant unproven (the manager alleged to have made them was not called as a witness) and the letter to the Labour Office was mere reporting, not notice. The Court also found it irregular that the Human Resource Manager rather than the Claimant's immediate supervisor handled the performance discussion, concluding the meeting's agenda was to communicate termination. It adopted the Claimant's testimony, found the termination substantively and procedurally unfair, and dismissed the counterclaim. The Claimant was awarded six months' salary (Kshs. 207,018) in compensation, one month's notice pay (Kshs. 34,503), salary for 17 days worked in December 2010 (Kshs. 19,552), and leave pay (Kshs. 24,152), totalling Kshs. 285,225. Service pay was refused as he was an NSSF contributor. The Respondent was directed to issue a certificate of service, pay costs, and the award attracts interest at court rates from the date of award until payment in full.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

The Claimant was terminated, not a deserter; the termination was substantively and procedurally unfair

Reasoning

The Respondent alleged desertion after a performance meeting, but the Human Resource Manager, rather than the Claimant's immediate supervisor, initiated the discussion in the manager's absence. The Court inferred the meeting's true agenda was to communicate termination. The manager who allegedly made efforts to reach the Claimant was not called as a witness, so the efficacy of those efforts could not be assessed. No reason was advanced for termination and no due procedure was followed.

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02

Whether the Claimant is entitled to the remedies sought

Holding

Claimant awarded 6 months' salary compensation, notice pay, December salary, and leave pay; service pay refused due to NSSF contributions

Reasoning

The Court considered the Claimant's length of service and the Respondent's conduct in the termination. Notice pay was awarded, salary for 17 days worked in December 2010 was awarded, and the leave claim succeeded because the Respondent did not produce leave records to counter it. Service pay failed as the Claimant was a contributing NSSF member. The counterclaim for notice pay was dismissed.

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Legal principles established

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  • Desertion amounts to gross misconduct justifying summary dismissal but must be proved by the employer
  • An employer relying on desertion must show efforts were made to contact the employee and must at the very least issue reasonable notice that termination is being considered
  • A letter to the Labour Office reporting separation does not constitute notice of termination to the employee

Court orders

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  1. 1.Award of Kshs. 207,018 being 6 months' salary in compensation for unfair termination
  2. 2.Award of Kshs. 34,503 being 1 month's salary in lieu of notice
  3. 3.Award of Kshs. 19,552 being salary for 17 days worked in December 2010
  4. 4.Award of Kshs. 24,152 being leave pay (34,503/30x21)
  5. 5.Total award of Kshs. 285,225 in favour of the Claimant
  6. 6.Respondent to issue the Claimant with a certificate of service
  7. 7.Respondent to pay the costs of the case
  8. 8.The award to attract interest at court rates from the date of the award until payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims for unlawful termination of employment and accrued employment dues (Cause No 1401 of 2011)

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, "Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] KEELRC 1382 (KLR)", Case Analysis (2016). Cause No 1401 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1382/eng@2016-03-24

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