Josphat Arati Ongera v Gianchore Tea Factory Company Limited [2018] KEELRC 1604 (KLR)
The bottom line
#The Employment Court dismissed a tea factory worker's constructive dismissal claim because he proved no actual termination and skipped internal disciplinary processes.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's suspension amounted to a termination of employment
No termination of employment was established; the claimant remained on suspension and did not discharge the evidentiary burden under section 47(5) of the Employment Act
The claimant was placed on suspension pending further investigation and action. The court held that the claimant failed to establish on a balance of probability that a termination occurred, as required by section 47(5) of the Employment Act, 2007. The respondent's communication of reasons did not constitute disciplinary proceedings, and the claimant did not pursue all internal avenues before filing suit. With no termination found, the remaining issues fell away.
Whether the respondent afforded the claimant a hearing as required by section 41 of the Employment Act
The respondent's communication of the reasons for suspension did not amount to disciplinary proceedings under section 41(1) and (2)
The respondent submitted that the claimant was afforded a chance to be heard and the reasons for suspension were communicated. The court asked whether such communication amounts to disciplinary proceedings under section 41(1) and (2) of the Employment Act and concluded it did not, describing that proposition as 'a tall order'. However, the claimant's failure to exhaust internal processes weighed against the claim.
Legal principles established
#- In a complaint of unfair termination, the burden of proving that an unfair termination or wrongful dismissal occurred rests on the employee
- A mere communication of suspension reasons does not amount to disciplinary proceedings under section 41 of the Employment Act
Court orders
#- 1.Claim dismissed
- 2.Each party to bear their own costs of the claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim of unfair/constructive dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kennedy Ongiro Mogire & 3 others v James Elvis Omariba Ongwae Governor, Kisii County & 22 others [2020] KEELRC 1384 (KLR)[2020] KEELRC 1384 (KLR)10 Mar 2020
Cite this brief
#Cite this brief
Caselaw, "Josphat Arati Ongera v Gianchore Tea Factory Company Limited [2018] KEELRC 1604 (KLR)", Case Analysis (2018). Cause No. 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1604/eng@2018-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.