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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 850 (KLR)

Daniel Omboga Onsabwa & 10 others v M/S Polysack Limited & another [2018] KEELRC 850 (KLR)

Employment and Labour Relations Court
26 October 2018
3,625 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court found the workers weren't unfairly dismissed but their employer must pay all unpaid wages and issue service certificates.

What this practically means

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Executive summary

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Eleven former factory workers at the respondents' Thika factory sued for accrued employment benefits and compensation for unfair termination arising from an August 2012 strike over terms and conditions of service. After a strike notice, the employer closed operations for stocktaking, a Return to Work formula was signed through the labour office, and workers were to report on 9.8.2012. The claimants alleged they were locked out and dismissed; the respondents asserted fair dismissal for drunkenness (1st claimant), contract expiry (2nd claimant), and desertion/resignation by the rest. Seven claimants testified; the respondents called their HR Officer, Nicholas Maina. The court framed two issues: whether the claimants deserted or were unfairly terminated, and whether reliefs should issue. Applying sections 45(2), 41, 44(4)(b) and 47(5) of the Employment Act, the court held the first claimant was fairly dismissed on a medically confirmed valid reason and fair procedure; the second claimant's contract lapsed by effluxion of time; and claimants 3 to 11 deserted or resigned voluntarily, their evidence being materially contradictory and failing to discharge the burden of proof. Most heads of relief - notice pay, compensation, underpayment, house and shift allowance, rest days, severance and leave - were dismissed. The court allowed only unpaid salaries for days worked in July and August 2012, including arrears for any claimant paid below the 2012 General Wage Order minimum, payable within 30 days with interest at court rates from filing, subject to statutory deductions, plus certificates of service, and awarded the claimants half the costs of the suit.

Key legal issues

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01

Whether the 1st claimant's dismissal for drunkenness was fair

Holding

Fairly terminated for a valid reason under section 44(4)(b) with procedural fairness observed

Reasoning

The claimant was informed of the misconduct, denied it, was escorted to St Matia Mission Hospital and a medical report confirmed intoxication. The medical documents were admitted by consent and never challenged. Other employees witnessed the proceedings, satisfying the hearing requirement.

p. 3
02

Whether the 2nd claimant was unfairly terminated

Holding

Contract lapsed by effluxion of time and was not renewed; not unfair termination

Reasoning

The claimant admitted in evidence that his contract expired on 1.7.2012 and was not renewed, and Rw1 confirmed the same. Non-renewal of a fixed-term contract on expiry is not unfair termination under section 45.

p. 3
03

Whether claimants 3–11 were locked out or deserted/resigned

Holding

They deserted or resigned voluntarily by failing to report back as directed

Reasoning

Their evidence was contradictory: they failed to name fellow employees at the gate, gave conflicting accounts of when the list of fired employees was published, and Cw6's account that Cw5 reported back contradicted Cw5's evidence of earlier dismissal. The court drew adverse inferences from these contradictions and found non-reporting amounted to desertion or resignation.

p. 4
04

Accrued dues

Holding

Only unpaid salary for days worked plus wage-order arrears and certificates of service awarded

Reasoning

Having found no unfair termination, notice pay, compensation, severance and allowances claims failed; but wages earned and unpaid, and any shortfall against the 2012 General Wage Order, remained payable as accrued contractual/statutory entitlements.

p. 4

Legal principles established

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  • Under section 45(2) of the Employment Act, termination is unfair unless the employer proves a valid and fair reason and a fair procedure including a hearing under section 41
  • Under section 47(5) of the Employment Act, an employee must prove unfair termination on a balance of probability
  • An employee who fails to report back to work as agreed under a Return to Work formula may be deemed to have deserted or resigned

Court orders

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  1. 1.Respondents to assess and pay each claimant's unpaid salary for the days worked in July and August 2012, including arrears for claimants earning below the 2012 General Wage Order minimum, within 30 days
  2. 2.Payment to attract interest at court rates from the date of filing suit until payment in full, subject to applicable statutory deductions
  3. 3.Assessment to be filed in court for adoption as the court's decision within 30 days
  4. 4.Certificate of service to be issued to the claimants as prayed
  5. 5.Claimants awarded half the costs of the suit to be agreed or taxed

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 44(4)(b)
  • Employment Actsection 47(5)
  • 2012 General Wage Orderminimum salary published 1.5.2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (suit for unfair termination and accrued employment benefits)

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, "Daniel Omboga Onsabwa & 10 others v M/S Polysack Limited & another [2018] KEELRC 850 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/850/eng@2018-10-26

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