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ELRCPartially AllowedCause No. 1811 of 2014· [2018] KEELRC 422 (KLR)

Christopher Omutubachi v Metalic Crowns Limited [2018] KEELRC 422 (KLR)

Employment and Labour Relations Court of Kenya
29 November 2018
1,940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fired a worker without a proper hearing was ordered to pay compensation, and had to prove the dismissal was fair once the employee raised doubt.

What this practically means

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Executive summary

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The claimant, employed as a machine operator by the respondent from 24th May 2010 at a gross salary later of Kshs. 32,589.00, sued for wrongful and unlawful termination arising from his dismissal on 3rd April 2014. The dismissal letter cited neglect of duty on 29th March 2014 - leaving his machine running while chatting with colleagues, causing an overflow of plastic closures compromising food packaging quality. The claimant alleged the dismissal was driven by racism by the respondent's director, that he was denied a hearing contrary to section 41 of the Employment Act, 2007, forced to sign discharge documents, and given no prior warning or opportunity to improve performance. The respondent denied the claim, asserting willful neglect of duties, prior warnings, and that the claimant signed discharge documents voluntarily. The court framed three issues: wrongfulness of termination, entitlement to relief, and costs. On the first, the court rejected the respondent's reliance on section 47(5) as an absolute allocation of burden, holding that an employee need only establish a probable case of unlawful termination to shift the burden of justification to the employer. The respondent produced no evidence of disciplinary proceedings, prior warnings, or an opportunity to improve, rendering the reason for termination unsupported. The court found the termination unlawful for want of substantive and procedural fairness. The claim was allowed in part: eight months' salary (Kshs. 260,712.00) as compensation for unlawful termination was awarded, and the respondent was ordered to bear the costs of the claim. The remaining heads of claim, including notice pay, leave, severance, arrears and the bank loan, were not granted.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was unlawful for want of substantive and procedural fairness; the claimant established a probable case of unfair termination, shifting the burden to the respondent who failed to justify the grounds with evidence of disciplinary proceedings.

Reasoning

The court rejected the respondent's invocation of section 47(5) of the Employment Act as an absolute shield, holding that the employee need only lay a probable case of unlawful termination to shift the burden of justification to the employer. The claimant demonstrated lack of procedural fairness, having been forced to sign discharge documents without a hearing as required under section 41, and the reason for termination - neglect of duty by leaving his machine running - was not substantiated by any disciplinary record. The respondent also failed to show prior warnings or an opportunity to improve performance.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

Having succeeded on unlawful termination, the claimant was awarded eight months' salary as compensation for unlawful termination.

Reasoning

The court held that winning on unlawful termination entitled the claimant to relief, but exercised discretion to award eight months' compensation (Kshs. 260,712.00) rather than the twelve months claimed in lieu of notice and as compensation for disturbance. Other heads of claim - leave, arrears, severance, damages, bank loan settlement - were not granted.

p. 3
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Who bears the costs of the claim

Holding

Costs were awarded to the claimant against the respondent.

Reasoning

The claimant succeeded in the suit, so costs followed the event and were borne by the respondent.

p. 4

Legal principles established

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  • The burden of proving unfair termination is not rigid; once the employee lays down a probable case of unlawful termination, the burden shifts to the employer to justify the termination.
  • An employer who fails to adduce evidence of disciplinary proceedings cannot justify a termination; the grounds must be supported by law and precedent.

Court orders

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  1. 1.Eight (8) months compensation for unlawful termination of employment at Kshs. 32,589.00 per month, totalling Kshs. 260,712.00
  2. 2.The costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 47(5)

Cases cited (2)

  • Kenya Science Research International Technical and Allied Workers Union (KRISTAWU) Vs Stanley Kinyanjui and Magnate Ventures Ltd
    Industrial Court Cause No. 273 of 2010
  • Alphonce Sulpice Mzeng v Mombasa Air Safari Ltd
    Cause No. 110 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; employment relationship between the parties)

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, "Christopher Omutubachi v Metalic Crowns Limited [2018] KEELRC 422 (KLR)", Case Analysis (2018). Cause No. 1811 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/422/eng@2018-12-03

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