Mwaniki Johnson Mwendwa v Textplast Industries Limited [2016] KEELRC 1774 (KLR)

Employment and Labour Relations Court at Nairobi

26 January 2016

HWHellen S. Wasilwa

901 words in judgment

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The bottom line

A Kenyan court ruled a worker was unfairly dismissed because the employer could not prove he resigned or followed fair dismissal procedures.

What this practically means

Executive summary

The claimant, employed as a general labourer on 11.12.2007 at a gross monthly salary of Kshs.12,000/-, claimed unfair termination/dismissal and non-payment of terminal dues, contending he was summarily dismissed on 15.4.2010 without a hearing, in breach of the Constitution, the Employment Act, 2007 and natural justice. The respondent countered that employment commenced on 1.1.2008, that the claimant deserted duty on 15.4.2010 and abruptly resigned on 8.5.2010 without notice, and counter-claimed one month's salary in lieu of notice. The court framed three issues: whether the claimant resigned or was terminated; whether due process was followed; and what remedies were due. On the first issue, the claimant denied in cross-examination ever resigning, and the court held the onus lay on the respondent to prove the alleged resignation letter was the claimant's, which it failed to do; there was also no acknowledgment of the letter. The court found the claimant was dismissed. On the second issue, the court applied Sections 41 and 45 of the Employment Act, 2007, holding that the procedural safeguards of explanation and hearing were not met and that the respondent failed to prove a valid reason and fair procedure. The termination was found unlawful and unjustified. The court awarded one month's salary in lieu of notice (Kshs.11,330/-), twelve months' salary as damages (Kshs.144,000/-), a certificate of service, costs and interest, less statutory deductions.

Key legal issues

Whether the claimant resigned or was dismissed

Holding

The court found the claimant was dismissed as he stated; the alleged resignation letter was not proved to be his.

Reasoning

The claimant denied in cross-examination ever resigning or submitting a resignation letter in May 2010 and denied authorship of the letter produced. The court held the burden of proving the document was the claimant's lay on the respondent, which failed to discharge it. There was also no reply acknowledging the alleged resignation, undermining its authenticity.

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Whether due process was followed in the termination

Holding

Due process under Section 41 of the Employment Act, 2007 was not followed; the termination was unfair and unlawful under Section 45.

Reasoning

Section 41 requires an employer to explain the reasons for contemplated termination to the employee in a language he understands and to hear and consider representations before summarily dismissing for misconduct. Section 45 places the burden on the employer to prove a valid and fair reason and fair procedure. The respondent established neither the reason nor the process, so the dismissal was unlawful and unjustified.

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Legal principles established

The onus of proving that a purported resignation letter was indeed authored by the employee rests on the employer who relies on it.
An employer must comply with the procedural fairness requirements of Section 41 of the Employment Act before terminating employment, failing which the termination is unfair under Section 45.
Where the employer fails to establish the reason for termination and the process followed, the termination is unlawful and unjustified.

Court orders

1.Award of 1 month's salary in lieu of notice of Kshs. 11,330/- being leave days and April salary admitted by the Respondent
2.Award of 12 months' salary as damages for unlawful termination of Kshs. 144,000/-
3.Total award of Kshs. 155,330/- less statutory deductions
4.Claimant to be issued with a Certificate of Service
5.Respondents to pay costs of the suit and interest at court rates from the date of judgment

Authorities

Legislation

Employment ActSection 41(1) and (2)
Employment ActSection 45(1) and (2)
Constitution of Kenyanot specified (fair practices envisaged by the Constitution)

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mwaniki Johnson Mwendwa v Textplast Industries Limited [2016] KEELRC 1774 (KLR)", Case Analysis (2016). Cause No. 384 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1774/eng@2016-01-26

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