Hansen Balanga Atsanga v Shiva Carriers Ltd [2017] KEELRC 1914 (KLR)
The bottom line
#A Kenyan court ruled an employee who deserted his job proved nothing about unfair dismissal, but still won unpaid salary, leave pay, and his certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant deserted work or was unfairly dismissed
The claimant was not unfairly dismissed; he deserted work from 28.3.2015 and thereby terminated his own employment
Under section 47(5) of the Employment Act the burden of proving unfair termination lies on the employee. The claimant gave inconsistent reasons for his alleged dismissal (mishandling a truck in his statement versus drunkenness and rudeness in testimony) and produced no documentary or corroborating evidence that he worked until 14.4.2015. The respondent's witness produced a master roll proving the claimant worked until 27.3.2015 and then absconded.
Entitlement to reliefs
Claims for notice pay, unexpired contract term salary and compensation dismissed; pro rata leave and January 2015 salary deductions allowed; certificate of service granted
Having failed to prove unfair termination, the claimant could not recover notice pay, unexpired contract salary or compensation. Leave was granted pro rata for six months worked (13 days). The January 2015 deduction was unlawful because the absence was during suspension and the claimant was unconditionally reinstated, so he was entitled to the balance of that month's salary. March deductions were refused as he deliberately absented himself.
Legal principles established
#- Under section 47(5) of the Employment Act, the burden of proving unfair termination of employment lies on the employee who alleges it
- Termination is unfair under section 45(2) if not founded on a valid and fair reason and done without fair procedure
- A certificate of service is an employee's statutory right under section 51 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant for kshs.30,273 plus half costs and interest
- 2.Claimant to be issued with a Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 45, 47(5) and 51 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hansen Balanga Atsanga v Shiva Carriers Ltd [2017] KEELRC 1914 (KLR)", Case Analysis (2017). Cause No. 514 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1914/eng@2017-01-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.