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ELRCPartially AllowedCause No. 734 of 2014· [2016] KEELRC 1859 (KLR)

Andrew Natembea Wafula v Metal Cans & Closures Kenya Ltd & Lupra Manpower and HR Management Services (Cause 734 of 2014) [2016] KEELRC 1859 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
4 August 2016
1,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a worker over Kshs. 128,000 because his employer fired him without notice, a hearing, or written reasons, and kept no records.

What this practically means

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Executive summary

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The Claimant sued the 1st Respondent, a manufacturer of metal cans and closures, and the 2nd Respondent, a labour outsourcing firm, alleging unlawful termination, non-payment of overtime, unremitted statutory deductions, discrimination and denial of procedural rights under the Employment Act. He sought 12 months' notice pay, overtime, NSSF/PAYE/NHIF refunds, leave dues, compensation for disturbance and costs. The Respondents filed a defence asserting that the Claimant was issued an appointment letter which he declined to acknowledge, denying the violations, but called no evidence at the hearing which they opted to skip despite due service. The court held that the employer bears the statutory duty under sections 8, 9 and 10 of the Employment Act to issue a written contract and keep and produce work records; the unproduced appointment letter left the defence bare. The unchallenged evidence of being chased away without notice, hearing or written reasons established unfair termination under section 45, sections 35, 41 and 43 being mandatory even in cases of gross misconduct. The court awarded one month's notice pay (Kshs. 11,247.00), overtime of Kshs. 49,896.00, and six months' gross pay (Kshs. 67,482.00) as compensation for unfair termination. It declined the 12 months' notice pay, holding statutory dues were not payable to the claimant as penalties for non-remittance lie to the statutory bodies. Judgment was entered for the Claimant on those heads with costs.

Key legal issues

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01

Whether the termination was unfair under sections 35, 41, 43 and 45 of the Employment Act

Holding

The termination was unprocedural and lacked reason, and was therefore unfair under section 45; the Claimant was chased away from work without notice, hearing or an opportunity to explain himself

Reasoning

Sections 35, 41 and 43 are mandatory: notice or payment in lieu, a hearing to defend oneself, and written reasons must precede termination. The Claimant's unchallenged evidence was that he was chased away when a carton got torn, and never called back. The Respondents called no evidence and did not produce the appointment letter, leaving the defence bare. Accordingly the dismissal was unfair.

p. 3
02

Burden on the employer to produce employment records and the consequences of failing to do so

Holding

The employer's duty to keep and produce work records means the unproduced appointment letter and absence of records left the defence unproved, and the Claimant's evidence stood unchallenged

Reasoning

The defence asserted the Claimant was issued a letter of appointment which he declined to acknowledge, but the letter was not attached to the defence. Sections 8, 9 and 10 of the Employment Act require a written contract and the employer must keep all work records and produce them when sued. Without records on terms or time-keeping, the defence was bare and the overtime claim was unchallenged.

p. 2
03

Whether unremitted statutory dues (NSSF, PAYE, NHIF) are recoverable from the employer by the employee

Holding

Such dues are not payable to the claimant; penalties for non-remittance fall to be imposed by the requisite statutory bodies

Reasoning

The court held that statutory deductions are regulated in law. Where an employer fails to remit them, penalties accrue to the statutory bodies that regulate them rather than to the individual employee, so the claimed amounts were not payable to the Claimant and no award was made on those heads.

p. 3
04

Quantum of remedies for unfair termination

Holding

One month's notice pay of Kshs. 11,247.00, overtime of Kshs. 49,896.00, and six months' gross pay (Kshs. 67,482.00) as compensation for unfair termination

Reasoning

Although the Claimant sought 12 months' notice pay, the court found no justification and granted one month under section 35. Overtime was awarded as the Respondents kept no time records. For the unfair termination finding, the court exercised its discretion to award six months' gross pay as compensation rather than the 12 months claimed.

p. 3

Legal principles established

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  • An employer must issue a written contract of employment and keep work records, and bears the duty to produce those records where a suit such as this is filed
  • Sections 35, 41 and 43 of the Employment Act are mandatory: before termination the employer must give notice or payment in lieu, a hearing, and written reasons; failure renders the termination unfair under section 45
  • An employee must be given a hearing even in the case of gross misconduct, and where the employer cannot hear the employee, the circumstances excusing this must be demonstrated to the court
  • Where the employer produces no records setting out the timelines at work, an unchallenged claim for overtime succeeds

Court orders

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  1. 1.One month's notice pay of Kshs. 11,247.00 awarded under section 35 of the Employment Act
  2. 2.Overtime compensation of Kshs. 49,896.00 awarded
  3. 3.Compensation for unfair termination of 6 months' gross pay, being Kshs. 67,482.00
  4. 4.Judgment entered for the Claimant in terms of paragraphs 16, 17 and 18 of the judgment
  5. 5.Costs of the suit awarded to the Claimant

Authorities

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Legislation

  • Employment Actsection 5
  • Employment Actsections 8, 9 and 10
  • Employment Actsection 35
  • Employment Actsections 41 and 43
  • Employment Actsection 45

Cases cited (1)

  • Joseph Mariko & Another versus Padya Mukesh t/a Relish Restaurant
    Cause No. 1237 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim filed as a Memorandum of Claim under Cause No. 734 of 2014)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Andrew Natembea Wafula v Metal Cans & Closures Kenya Ltd & Lupra Manpower and HR Management Services (Cause 734 of 2014) [2016] KEELRC 1859 (KLR)", Case Analysis (2016). Cause No. 734 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1859/eng@2016-08-04

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