Aggrey Onyango Ober v Steelmakers Limited [2018] KEELRC 199 (KLR)
The bottom line
#A Kenyan court ruled that an employer claiming an employee absconded must prove it, awarding the worker pay for unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was dismissed or absconded duty
The Claimant was dismissed; the Respondent failed to prove abscondment
The Respondent alleged the Claimant absconded and was dismissed 1½ months later, producing muster rolls to that effect. However, the muster rolls bore no signature of the Claimant and no payment sheets signed by him were produced for the periods before and after the alleged abscondment. No dismissal letter was ever served. On this evidential state the court found dismissal rather than abscondment proved.
If dismissed, whether the dismissal was fair and justified
The dismissal was unfair and unjustified under Section 45(2) of the Employment Act
Having found a dismissal, the court held there was no indication the Claimant was accorded any hearing, so Section 41 of the Employment Act was not adhered to. Applying Section 45(2), an employer must prove a valid and fair reason and a fair procedure; failure to hear the employee before dismissal defeated the Respondent's case and rendered the termination unfair.
Whether the remedies sought can be granted
Only notice pay and 6 months' compensation awarded; service pay before 2007 and leave pay time-barred, overtime not proved
Claims for service pay and leave relating to the pre-2007 casual period accrued under the repealed Employment Act Cap 226 and, being over 6 years old when the claim was filed in 2015, were time-barred. Overtime was not proved. The court exercised discretion under the remedies framework to award one month's notice and six months' salary as compensation for the unfair termination.
Legal principles established
#- In the absence of a termination or dismissal letter, an employer's assertion that an employee absconded cannot stand, and the employee is taken to have been dismissed.
- An employer who fails to accord an employee a hearing before dismissal contravenes Section 41 of the Employment Act and the dismissal is unfair under Section 45(2).
- The muster rolls produced did not evidence abscondment because they bore no signature of the Claimant.
Court orders
#- 1.The Respondent to pay the Claimant 1 month's salary in lieu of notice of Kshs. 18,330
- 2.The Respondent to pay the Claimant 6 months' salary as compensation for unlawful termination of Kshs. 109,980 (total award Kshs. 128,310)
- 3.The Respondent to pay costs of the suit plus interest at Court rates with effect from the date of the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (implied by the court's jurisdiction over the employment claim); the claim was filed under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aggrey Onyango Ober v Steelmakers Limited [2018] KEELRC 199 (KLR)", Case Analysis (2018). Cause No. 262 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/199/eng@2018-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.