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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 1430 (KLR)

Edwin Kosgei v Metkei Multi-Purpose Company Ltd [2016] KEELRC 1430 (KLR)

Employment and Labour Relations Court
8 April 2016
895 words in judgment
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The bottom line

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A Kenyan court ruled that an employee who ignored chances to explain his absence can't claim unfair dismissal—though he won Kshs 32,000 in unpaid leave.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nakuru (Radido Stephen, Judge) determined whether the Claimant's dismissal was unfair, whether his right to fair administrative action was violated, and what remedies were appropriate. The Claimant, a driver involved in a work-related road accident on 9 December 2013, testified he was told to go home and await a call, and was dismissed outside the gate on 10 February 2014 without a hearing. The Respondent's Plant Manager testified that letters inviting the Claimant to a Board disciplinary hearing on 6 February 2014 were posted, but the Claimant failed to appear, and that he declined reassignment of duties, amounting to desertion. Faced with two inconsistent narrations on delivery of the letters, the Court accepted the Respondent's version as more plausible, holding the Claimant was afforded an opportunity to make representations but did not, and had evinced an intention not to resume duty; valid and fair reasons for dismissal were proved. On the Article 47 claim, the Court held the Respondent was acting as an employer, not exercising administrative power, so fairness fell under Article 41, not Article 47, reserving public-law-underpinned employment for another day. Notice pay and compensation were refused as untenable given the findings; service pay was not determinable on the material; but under section 10(3) of the Employment Act the Court awarded Kshs 32,000/- for accrued leave as pleaded, the employer having failed to produce employment records. The Cause was dismissed except for that award, and the Claimant was denied costs for late filing of submissions. Delivered in Nakuru on 8 April 2016.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The Claimant was afforded an opportunity to be heard but did not take it; he cannot impeach the process.

Reasoning

The Court was faced with two inconsistent narrations as to delivery of the disciplinary letters. Considering the Board minutes and the absence of suggestion that the Board did not meet, the Court found the Respondent's version more plausible - letters were posted and the Claimant failed to appear before the Board on 6 February 2014. He therefore could not impugn the process followed before dismissal.

p. 1
02

Substantive fairness - desertion

Holding

The Respondent proved valid and fair reasons for the dismissal (desertion).

Reasoning

Both parties agreed the Claimant was last at work around 9 December 2013. With the finding that the letters were sent out, the Court was satisfied the Claimant had evinced an intention not to resume duty and snubbed opportunities to explain. Desertion was therefore established as a valid and fair reason for dismissal.

p. 2
03

Right to fair administrative action under Article 47

Holding

Not violated; the Respondent was acting as an employer, not exercising administrative power.

Reasoning

The Claimant argued his Article 47 right was breached, relying on Shankar Saklani v DHL Global Forwarding and Kenneth Njiru Njorani v Dodhia Packaging. The Court held the action was purely contractual, to be tested under Article 41, reserving for another day cases where employment contracts underpinned by public law implicate fair administrative action.

p. 2
04

Leave pay

Holding

Awarded Kshs 32,000/- as pleaded under section 10(3) of the Employment Act.

Reasoning

The Respondent as employer ought to have produced employment records to meet the leave claim but did not. Section 10(3) of the Employment Act shifts the evidential burden where records are not produced, so the Court found for the Claimant in the sum pleaded of Kshs 32,000/-.

p. 2

Legal principles established

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  • The fairness of a purely contractual termination of employment is determined under Article 41 and not Article 47 of the Constitution; the right to fair administrative action is not implicated where a private employer is acting as an employer.
  • An employer who shows that an employee was afforded an opportunity to make representations but did not take it cannot have the dismissal process impeached; and where the employee snubs opportunities to explain, the employer has proved valid and fair reasons for dismissal.
  • Where an employer fails to produce employment records in response to a leave claim, the court will find for the employee on the pleaded amount under section 10(3) of the Employment Act.

Court orders

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  1. 1.Dismissal of the Claimant held not unfair and the Cause dismissed except for an award of Kshs 32,000/- on account of accrued leave
  2. 2.Award of Kshs 32,000/- to the Claimant under section 10(3) of the Employment Act, 2007
  3. 3.Claimant denied costs for failing to file and serve submissions within the agreed timelines

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Employment Act, 2007Section 35(5) and (6)
  • Employment Act, 2007Section 10(3)

Cases cited (2)

  • Shankar Saklani v DHL Global Forwarding (K) Ltd
    (2013) eKLR
  • Kenneth Njiru Njorani v Dodhia Packaging Ltd
    Nairobi Cause No. 431 of 2010
Jurisdiction invoked
Employment and labour relations jurisdiction (Article 41 of the Constitution; Employment Act, 2007)

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, "Edwin Kosgei v Metkei Multi-Purpose Company Ltd [2016] KEELRC 1430 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1430/eng@2016-04-08

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