James Ashiembi Namayi v Menengai Oil Refineries Ltd [2016] KEELRC 1802 (KLR)
The bottom line
#Kenyan employers cannot dismiss workers for desertion without proving the employee meant never to return and giving them a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal for desertion was procedurally fair
The dismissal was procedurally unfair because the Respondent did not conduct a hearing even though one was capable of being conducted when the Claimant reported back on 4 January 2014
The Claimant testified, unchallenged, that he reported to work on 4 January 2014 and was handed a dismissal letter dated 30 December 2013. Since the Claimant was reachable and appeared at the workplace, the Respondent could have heard him before dismissing him. The decision having been taken on 30 December 2013 without any hearing, procedural fairness was not met.
Whether the Respondent proved desertion
The Respondent failed to prove the ingredients of desertion, particularly the Claimant's intention not to return and reasonable attempts to reach him
The Respondent's witness did not disclose the identity of the employee allegedly sent to look for the Claimant, or the estate or neighbourhood where he was sent, and that employee was not called to testify or the failure explained. The Court found the Claimant had no intention of deserting, having reported back on 4 January 2014.
Whether the Claimant was underpaid
This head of claim failed for lack of evidence
The pleaded case compared the loader position to that of a turn boy, but the Claimant made only fleeting reference to the claim in testimony and did not explain his daily tasks and responsibilities, leaving the Court with insufficient material to determine underpayment.
Appropriate remedies for unfair dismissal
One month pay in lieu of notice and five months' gross wages as compensation
Procedural unfairness entitled the Claimant to one month's pay in lieu of notice (last proved basic wage Kshs 8,628/-). Considering about 17 years of service and the circumstances of separation, the Court exercised its statutory discretion to award the equivalent of five months' gross wages (Kshs 9,922/-) as compensation.
Legal principles established
#- A hearing ought to be conducted where an employer alleges desertion before the employment relationship can be deemed to have been terminated fairly
- Desertion requires an intention by the employee not to return to work, which the employer must prove; it is distinguishable from absence without leave
- An employer alleging desertion must demonstrate attempts to reach the employee and the employee's intention not to return, inferred from facts such as lack of communication, duration of absence and efforts to locate the employee
Court orders
#- 1.Award of 1 month pay in lieu of notice of Kshs 8,628/-
- 2.Award of 5 months wages as compensation of Kshs 49,610/- (total Kshs 58,238/-)
- 3.Claimant to have costs of the Cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause; specific provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ashiembi Namayi v Menengai Oil Refineries Ltd [2016] KEELRC 1802 (KLR)", Case Analysis (2016). Cause (not stated in judgment; commenced 10 July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1802/eng@2016-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.