Patrick Maelo Tuluku v Corrugated Sheets Ltd [2018] KEELRC 1677 (KLR)
The bottom line
#A Mombasa court awarded a dismissed worker Kshs.226,600, finding employers must prove desertion claims and follow fair dismissal procedures.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was unfairly terminated or deserted employment
The claimant proved on a balance of probability that he was dismissed by the respondent's supervisor, Mr. Rauji; the desertion allegation was unsupported by evidence.
The claimant alleged he was summarily dismissed after seeking money to go to hospital. The respondent alleged desertion but called neither the supervisor nor the security officer said to have enforced the eviction. The court applied the principle that a party who could easily call witnesses to rebut damaging allegations but fails to do so risks an adverse inference, and found the claimant discharged his burden under section 47(5).
Whether the dismissal was unfair
The termination was unfair for want of a valid reason and failure to follow the mandatory procedure under sections 41, 43, 45 and 47.
Under section 45(2), an employer must prove both a valid and fair reason and a fair procedure. RW1 admitted no hearing was given and the statutory procedure was never followed. The respondent led no evidence justifying the termination. Section 41 requires explanation of reasons and an opportunity to be heard before termination on grounds of misconduct, incapacity or poor performance, which was not done.
Reliefs payable for unfair termination
One month's salary in lieu of notice, ten months' salary as compensation, and leave pay were awarded; overtime and public holiday claims were dismissed.
Under section 49, the court awarded compensation considering the claimant's service of over six years and the absence of proven misconduct contributing to the termination. Leave was computed at Kshs.550 per day for 21 leave days over 6 years. The overtime and public holiday claims failed because the claimant provided no particulars or supporting evidence.
Legal principles established
#- The burden of proving unfair termination lies on the employee who alleges unfair dismissal, under section 47(5) of the Employment Act.
- Where an employer alleges desertion without supporting evidence, while failing to call key witnesses who could rebut the employee's account of dismissal, the court may find the employee proved dismissal on a balance of probability.
- Termination is unfair if the employer fails to prove a valid and fair reason and a fair procedure; the section 41 hearing procedure is mandatory.
Court orders
#- 1.Declaration that the termination of the claimant's employment was unfair and unjust
- 2.Award of Kshs.14,300 being one month salary in lieu of notice
- 3.Award of Kshs.143,000 being 10 months' salary as compensation for unfair termination under section 49 of the Employment Act
- 4.Award of Kshs.69,300 for unutilised leave (Kshs.550 x 21 leave days x 6 years)
- 5.Dismissal of the claims for overtime and public holidays worked
- 6.Judgment entered for the Claimant in the sum of Kshs.226,600 plus costs and interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (specific constitutional/statutory provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Maelo Tuluku v Corrugated Sheets Ltd [2018] KEELRC 1677 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1677/eng@2018-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.