Julius Ikapes Wasike v Capacity Outsourcing Limited [2018] KEELRC 734 (KLR)
The bottom line
#A Kenyan court ruled that ending a worker's contract abruptly without notice or redundancy procedures was unlawful, awarding notice pay and compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's services was lawful
The dismissal was unlawful because no notice was given and, if the services ended on account of the variation of the contract with BAT, the Claimant ought to have been declared redundant; the Respondent failed to adhere to the law.
The Respondent asserted the Claimant's last contract simply expired on 11 March 2017, but its own contracts were shown to end at the end of a month, and the Claimant's service ended abruptly mid-month. The only evidence of notice was the verbal testimony of the Respondent's manager. Had the Respondent genuinely ended the engagement on account of the variation in its contract with BAT, the proper route was a declaration of redundancy. Failing that, the dismissal offended the Employment Act and entitled the Claimant to notice pay and compensation.
Whether the Respondent complied with its record-keeping obligations under Section 74 of the Employment Act
The Respondent was under a statutory duty to keep records; its failure to document reasons and remittances weighed against it.
Section 74 of the Employment Act obliges an employer to maintain employment records. The Claimant relied on this duty to challenge the alleged consolidated salary and the gaps in NSSF remittances. The Respondent's witness conceded he would have to check the records to explain the remittance gaps. The court nonetheless found the Claimant did not discharge his own burden of proving that the gaps were attributable to the Respondent, and that he failed to prove entitlement to the heads of claim beyond notice pay and compensation.
What remedies were available where a dismissal is found unlawful
The Claimant was entitled to notice pay of Kshs. 26,100.40 (basic pay plus house allowance), three months' compensation of Kshs. 78,301.20, costs and interest; all other heads of claim failed for want of proof.
Having found the dismissal did not comply with the law, the court awarded notice pay computed as basic pay plus house allowance and compensation equivalent to three months' salary. The court declined to order reissue of a certificate of service already issued, and held that the Claimant bore the burden of proving the remaining heads — salary arrears, house allowance, service pay, shift allowance — and the Respondent's responsibility for NSSF remittance gaps, which he failed to do.
Legal principles established
#- Where an employer terminates a fixed-term employee's services before contractual expiry on account of business variation, the employee ought to be declared redundant and the statutory procedures followed; failure to adhere to the law renders the dismissal unlawful
- An employer bears the statutory duty under Section 74 of the Employment Act to keep employment records; an employer who fails to produce records cannot rely on undocumented assertions
- Where the employer fails to adhere to the statutory provisions in a dismissal, the employee is entitled to notice pay and compensation
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for notice pay of Kshs. 26,100.40
- 2.Compensation for 3 months of Kshs. 78,301.20
- 3.Costs of the suit to the Claimant
- 4.Interest on the sums awarded at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (invoked by the Claimant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Ikapes Wasike v Capacity Outsourcing Limited [2018] KEELRC 734 (KLR)", Case Analysis (2018). Cause No 207 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/734/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.