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ELRCPartially AllowedCause No 417 of 2015· [2016] KEELRC 1744 (KLR)

Nixon Brown Kadoge Adagi v Geo-Sat Solutions Limited [2016] KEELRC 1744 (KLR)

Employment and Labour Relations Court of Kenya
20 January 2016
MMM. Mbaru
1,648 words in judgment
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The bottom line

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A Kenyan court ordered an employer to pay a worker Kshs.41,400 because it fired him without a hearing, a contract, or records.

What this practically means

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Executive summary

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The claimant, employed as a Monitor from 11th October 2012 at a monthly salary that rose from Kshs.15,000 to Kshs.18,000, sued for wrongful and unfair termination and unpaid terminal dues after being told on 9th September 2014 not to report to work. He was never issued an appointment letter, termination letter, or certificate of service. The respondent's defence alleged absconding duty for about two weeks, lateness, moonlighting as a web designer for another employer, and that all dues were paid; it relied on an unsigned warning letter dated 5th March 2014. The respondent failed to attend the hearing and called no evidence. The court held that under section 10(1) of the Employment Act an employer must issue a written contract within two months, failing which the employee's word is taken seriously, and that disciplinary rules must exist with the employment and cannot be formulated on the go. Relying on sections 73 and 74, the court placed the duty to keep and produce work records on the employer, finding the defence bare. The court also held the claimant not without blame for failing to submit a medical certificate for his sick absence under section 30. Applying sections 41 and 44, the court found the termination unfair because the claimant was neither heard nor given notice of the alleged misconduct. The claimant was awarded one month's notice pay (Kshs.18,000), salary for 9 days (Kshs.5,400), and one month's pay as compensation for unfair termination (Kshs.18,000). Leave pay was declined as it was never addressed in evidence, and no order for costs was made.

Key legal issues

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01

Non-issue of written contract of employment

Holding

The non-issue of a letter of employment leaves the employer exposed and the employee's word is taken seriously.

Reasoning

Section 10(1) of the Employment Act requires particulars of employment to be given not later than two months after employment begins. The written contract sets out terms and conditions and creates parameters for monitoring the employee. The respondent issued no letter of appointment, weakening its defence.

p. 2
02

Burden of producing employment records

Holding

The employer has custody of work records and must produce them when a suit is filed by an employee.

Reasoning

Sections 73 and 74 of the Employment Act vest the duty to keep work records on the employer. The defence was bare: apart from an unsigned warning letter, there were no records of employment, attendance, or payments made. The court drew adverse conclusions from the absence of such records.

p. 2
03

Procedural fairness before termination

Holding

The claimant was unfairly terminated as he was not given a hearing or notice of the alleged misconduct.

Reasoning

Under sections 41 and 44 of the Employment Act, an employee must be issued a show cause letter and heard before termination, even where summary dismissal is warranted. Absence without due cause required due process. The respondent terminated the claimant without a hearing or notice, rendering the termination unfair.

04

Employee's duty to furnish a medical certificate for sick absence

Holding

The employee bears the duty to submit a medical certificate under section 30 of the Employment Act to justify absence due to sickness.

Reasoning

Sickness itself is not an offence; the failure is in not submitting a medical certificate showing where the employee was attended to. The claimant produced no such certificate for his absence in August/September 2014, so he was 'not without blame', though this did not excuse the employer's failure to follow due process.

p. 3

Legal principles established

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  • An employer must issue a written contract of service stating particulars of employment not later than two months after the beginning of employment; failure to do so leaves the employer exposed, with the employee's word taken seriously.
  • An employer must have a disciplinary policy in existence with the employment, which cannot be formulated on the go when the employee errs.
  • The employer bears the duty to produce and keep employment records in a suit by an employee.
  • Termination without a show cause letter, hearing, and notice amounts to unfair termination even where summary dismissal is warranted.
  • An employee absenting himself for sickness must submit a medical certificate; failing to do so is the offence, not the sickness itself.

Court orders

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  1. 1.Judgment entered for the Claimant for kshs.18,000.00 compensation for unfair termination
  2. 2.Judgment entered for the Claimant for salary for 9 days worked in September 2014 at kshs.5,400.00
  3. 3.Judgment entered for the Claimant for notice pay at kshs.18,000.00
  4. 4.No order for costs

Authorities

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Legislation

  • Employment ActSection 10(1)
  • Employment ActSection 12(1)(a)
  • Employment ActSections 73 and 74
  • Employment ActSection 30
  • Employment ActSections 41 and 44
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause No 417 of 2015, claim of wrongful and unfair termination and unpaid terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Nixon Brown Kadoge Adagi v Geo-Sat Solutions Limited [2016] KEELRC 1744 (KLR)", Case Analysis (2016). Cause No 417 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1744/eng@2016-01-20

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