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ELRCDismissedCause No. 10 of 2017· [2018] KEELRC 1604 (KLR)

Josphat Arati Ongera v Gianchore Tea Factory Company Limited [2018] KEELRC 1604 (KLR)

Employment and Labour Relations Court of Kenya
29 June 2018
1,014 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed by the respondent since 2008, was issued a show cause letter on 11th January 2014 and by a letter dated 21st January 2014 was suspended for the offence of 'theft by servant' for a period not exceeding three months pending further investigation and action, placed on half salary, and directed to report to the Factory Unit Manager on 22nd April 2014. He claimed that he was constructively dismissed without a hearing, contrary to section 41 of the Employment Act, 2007 and the applicable Collective Bargaining Agreement, and sought a declaration that his indefinite suspension constituted unfair and unprocedural constructive dismissal, payment of full salary during suspension, maximum general damages, and costs. The respondent totally denied the claim, later submitting that the claimant was heard, the reasons for suspension were communicated, and that the suit was premature as internal disciplinary processes had not been exhausted. The matter proceeded by written submissions. Framing four issues, the court held that the claimant, who filed no submissions, failed to establish on a balance of probability a termination of employment as required by section 47(5) of the Employment Act; the respondent's communication did not amount to disciplinary proceedings, and the claimant had not pursued all avenues before filing suit. Finding no termination, the court dismissed the claim with each party bearing their own costs.

Key legal issues

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01

Whether the claimant's suspension amounted to a termination of employment

Holding

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

Reasoning

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.

p. 2
02

Whether the respondent afforded the claimant a hearing as required by section 41 of the Employment Act

Holding

The respondent's communication of the reasons for suspension did not amount to disciplinary proceedings under section 41(1) and (2)

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Claim dismissed
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment Act, 2007section 41(1) and (2)
  • Employment Act, 2007section 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim of unfair/constructive dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.